Leadership Message: July ’21

by Iryna Akulenka FCIArb

It gives me immense pleasure to write this very first Leadership Message for the quarterly Newsletter of the UAE Branch of the Chartered Institute of Arbitrators. We’ve come a long way!

This ‘Year of the 50th’, and in anticipation of the UAE’s golden jubilee on 2 December, I would like to celebrate the achievements of our exceptional ADR community, the UAE Branch of the CIArb, and most of all, our members. Let this Newsletter and indeed this year be all about you, and indeed for you, our valuable members!

Before I dive into some substantive thoughts on the recent trends and developments in ADR, I wanted to share a brief update on the Branch activities and news. This may be of particular interest to those of you who were unable to attend the Branch AGM on 3 June 2021.

Update on Branch Activities

2020 was a difficult year for many, but despite recent events, I am sure we will come out of this pandemic even more resilient and stronger together. Importantly, we still remain one of the biggest, most active and strategically important Branches in the world.

Education & Training

Thanks to our valuable faculty, course administrators and Education & Training team, we continued to successfully run our courses online. I am so grateful for the efforts of all those involved in the process.

Events

We successfully ran a number of webinars and online panel discussions, including webinars in the Arabic language. I am thankful to those who helped organizing the events and to all of our guest speakers for their valuable time and insight.

We are currently working on a series of webinars that we hope will be of interest to our members. As always, we are open to suggestions should you have a particular topic in mind, or would like to take part as a speaker.

While we still operate in the virtual world, we are now considering in-person events towards 2021 Q4. The decision to hold an in-person event will be informed by the Covid-19 updates, in compliance with local laws, rules, regulations, restrictions and in line with recommended best practices.

Communication and Member Engagement

I am pleased to report that we have completely revamped our communication strategy, making it more aligned with the Institute’s global Strategy for 2021-2023 (https://www.ciarb.org/about-us/strategy-2021-2023/), hence a more comprehensive and in-depth Newsletter which I hope you will enjoy reading.

In line with Strategic Aim 1¹ we continue to promote constructive dispute resolution, locally, regionally, and internationally. To that end, we continue delivering our training and develop strategic relationships in the local ADR community and business community at large. Soon, I hope to be reporting on some of the newly developed partnerships in the local and regional ADR arena.

In line with Strategic Aim 2² being a global thought leader, we have proudly introduced publication of Members’ Articles in our Newsletter. We hope you find these interesting and insightful, and we encourage our members to keep writing and publishing on topical matters.

Last but not least, and in line with Strategic Aim 3³ we have introduced Members’ Profiles in our Newsletter, where we would like to give the spotlight to our diverse membership base. To that end, and to remain inclusive (we are not an elite industry!), we include member profiles of different membership levels, background and gender. We hope you enjoy getting to know one another!

Other Initiatives

In addition to all of the above, we are currently in the process of:

• Improving the LinkedIn page of the Branch, thereby increasing our online presence (do follow our page!);
• Planning a series of interviews and/or surveys, in order to better understand the needs of our members;
• Kick starting our own mentorship scheme (based upon the outcome of the centrally piloted scheme in the UK);
• Rolling out courses in the Arabic language;
• Running a pilot of a new ‘Applied Arbitration for Fellows’ course before rolling out fully thereafter;
• Working on joint initiatives with the newly added partner universities;
• Working on growing Branch membership; and
• Planning a series of ‘How To’ events on topical matters.

Students

I would like to separately mention that we remain very keen to develop our Students membership and we continue working with local universities. This year, we have added yet another collaboration partner and are already planning a joint event after summer. Student Membership is still free; they also benefit from discounted courses, free virtual internship programme, mentorship programme and others. They are our future!

2021 White & Case/QMUL International Arbitration Survey (‘the Survey’)

I am sure many of you will be aware of the recently published results of the Survey. It already generated a great deal of debate amongst practitioners globally, and I encourage UAE Branch members to provide commentary and perhaps publish their articles in the next editions of the Newsletter.

Based on the Survey findings, some of the current trends in International Arbitration which may be of interest are:

• Use of emerging technologies such as A.I. and others
• Virtual hearings: are they here to stay? If so, what skills are vital?
• Sustainability in Arbitration – how can we all be ‘greener’?
• Cybersecurity and Data protection

Some of the other proposed topics that may be of interest:

• The rise of Mediation⁴
• Dispute avoidance and prevention
• Lawyers v Non-lawyers arbitrators: a never ending debate?

Separately, I am extremely pleased to see that thanks to the ongoing judicial support, various investment initiatives and a strong ADR ecosystem, the UAE remains a regional and international hub for dispute resolution. This is reflected in the Survey findings with Dubai being ranked the 10th out of the top ten arbitral seats globally. Congratulations!

Welcoming New Committee Members

In early June, we welcomed several new Committee members and I look forward to working together with the newly assembled team. Our Committee includes members from some nine countries, with a great mix of practitioners from both civil and common law backgrounds.

In addition, I am pleased to report that we now have seven female Committee members, nearly reaching parity in gender representation.

I am also extremely grateful to have with us Ms Fatima Balfaqeeh, our Vice Chair. Having a UAE national on the Committee is certainly a more balanced reflection of the Branch demographics.

Thanks

I would like to sincerely thank all current and going Committee members, course administrators, tutors and faculty members, supporters and contributors. Thank you all for your time, efforts and ideas, especially during these difficult times.

But above all, I would like to thank our members. None of this would be possible without you, as without our members we would not even be here! It is indeed an honour and a pleasure to serve you.

Whilst it is still possible to carry out my role virtually, I absolutely look forward to seeing all of you in-person, as the situation with the ongoing pandemic improves. Until then, I hope you remain safe and well, and that you are looking forward to our in-person events as much as I do.

Thank you

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Iryna Akulenka is a Fellow of the Chartered Institute of Arbitrators and the Chair of the CIArb UAE Branch. She is a Senior Consultant with HKA and can be contacted on iryna.akulenka@gmail.com.

1. Strategic Aim 1: Globally promote the constructive resolution of disputes
2. Strategic Aim 2: Be a global, inclusive thought leader
3. Strategic Aim 3: Develop and support an inclusive global community of diverse dispute resolvers
4. Particularly in light of the UAE Government passing Federal Law No. 6 of 2021 On Mediation for the Settlement of Civil and Commercial Disputes

Editorial – Activating Diversity with Inclusion

By Reshma Oogorah FCIArb

What is inclusion?

One of the CIArb’s strategic aims for 2021 to 2023 is to support an inclusive global community of diverse dispute resolvers. It commits to encourage and support equality, diversity, and inclusion, enabling the best candidates to join CIArb, and their dispute resolution progression regardless of background.

While equality and diversity are generally quantifiable through statistics related to age, race, gender, nationality, disability, educational background, geographical background, culture and religion amongst others, measuring the extent of inclusion is more challenging.

Inclusion is often conflated with diversity. But it has to be understood as being significantly different from diversity. Simply having a diverse team will not necessarily create positive change unless members of the team feel welcome and most importantly, enabled to participate in the decision-making process. Inclusion effectively activates the value of diversity.

According to the Gallup Report¹, inclusion refers to a cultural and environmental feeling of belonging. It is the extent to which people feel valued, respected, accepted and encouraged to fully participate within an organisation or leadership group that they are a part of. Without inclusion, people may not feel comfortable to voice their opinion, actively take part in decision-making or challenge the status quo when warranted.

The case for inclusion

Homogeneity of people within a group is more likely to result in similar perceptions and comparable opinions stifling innovation and creativity down the line. Whilst conformity may lead to speedier consensus, the group is likely to perpetuate a staler culture with slow progress. Imagine that you are surrounded only by people who think like you and agree with you all the time. Does “this is how it has always been done” sound like a familiar reason given to justify complacency and resistance to change?

On the other hand, diversity, when activated by inclusion, breeds more justice, productivity and intelligence and better decision-making because together they often lead to better questions, challenges, analyses, solutions, and ultimately provide a competitive advantage. However, this would only happen where people feel comfortable and encouraged to bring their different perceptions and varied opinions to the table, thus reducing the possibility of cognitive biases and encouraging accountability. It has been shown that inclusive teams make better decisions up to 87% of the time².

It may be argued that too many differences in opinions may result in delay, deadlock or disruption in decision-making. However, it has been found that these are more likely to happen when pitching the homogenous against the diverse. Disruption in diverse groups is more likely to occur when inclusion is superficial, for example, where minorities are asked for their opinion, just to tick the box, and not actually considered.

People who do not feel included do not feel free to speak up. They are not actively engaged as decision-makers and their performance is affected. In the absence of inclusion, diversity may improve perception and CSR rating, but it has little effective value in driving better decision-making and profits.

How can we support inclusion… or be included?

People experience varying degrees of exclusion, rejection, harassment and ridicule, which can be difficult to talk about or to overcome. While organisations are becoming increasingly diverse, there are still groups, cultural and generational differences, perceptions, and poor attitudes that get in the way of true inclusion. Diversity advocate Vernā Myers describes diversity as being invited to the party and inclusion as being asked to dance. Or to put it differently, while diversity identifies who is on the team, inclusion speaks of who is really in the game.

The question thus arises, having achieved a diverse team or group, what can we do to support inclusion or to be included? Here are my propositions in three steps: (a) Awareness (b) Access, and (c) Action.

(a) Awareness

Most of us tend to think we are inclusive enough and do not have biases which may lead to exclusive behaviour. I invite you to reconsider.

Studies show that we all have biases, unconscious or implicit bias, at least. Scientists have described that the unconscious roots of prejudice affect 90 – 95% of people. It has been found that non-minorities normally have a default sense of inclusion and are often unaware that others may feel uncomfortable or excluded.

The American Bar Association has developed a toolkit for use in exploring unconscious bias and suggests the Implicit Association Test (IAT), as a means to test bias³. Research shows that awareness of unconscious bias may bring about reversals in biased outcomes. An understanding of unconscious biases that are behind beliefs may be a driving force for changing attitudes.

Equipped with a basic awareness of biases which may create unintentional exclusive behaviours, we may examine our behaviours, take steps to educate ourselves and practice to eliminate such behaviours. Diversity, equity and inclusion training is becoming increasingly prevalent in organisations, giving people the possibility to learn from each other, and talk more openly about this issue. Awareness also leads to less defensiveness when challenged and more receptivity to acts of inclusion.

(b) Access

Once we become aware of our biases and what we may be missing out on if we do not address them, the next step is to create an environment which enables access to information and equal access to opportunities. An environment that invites the full range of perceptions of persons involved and maximises them.

Often, a lack of knowledge about how to grow into a position or detailed steps in accessing opportunities are what get in the way of true inclusion. Exclusion is characterised by the lack of voice, lack of recognition, or lack of capacity for active participation. Inclusion may be achieved for example by giving people a forum to speak, and share their views, having clear descriptions and readily available information on how to participate in certain activities, such as recruitment, elections or for being admitted on an arbitrator roster. Essentially, operations systems must be designed to optimise access to opportunities.

As an example, the CIArb has created clear multiple pathways for achieving different grades of its membership notably, Associate, Member or Fellow. The process for being part of its leadership is clear, whether it is at branch level or at the headquarters, with more efforts being made to continue to improve the process.

(c) Action

Oftentimes, organisations appoint a few women or people of different races to its leadership and think that they have ticked the boxes and can return to business as usual. When that happens, it is easy to fall into a false sense of security and assume that major strides have been achieved when in reality those people continue to feel like outsiders. That is because even though there may be underrepresented groups in leadership positions, the organisational culture has not shifted to embrace and fundamentally value those communities. Specific actions need to be taken to eliminate the barriers to inclusion.

For example, it has been found that if decisions are made in meetings, a decision-maker’s known preferred choice becomes the final choice 75% of the time. The rest of the group would generally only identify a better choice in 25% of decisions. This is likely because the authority and persuasiveness of the decision-maker has a biasing influence. However, if decisions are made on the basis of written documents, which were circulated to the group beforehand, the group’s input, results in a different decision 56% of the time⁴. This means that, leadership can achieve more inclusion and better results by promoting informative documents-based decisions without first having made their preferred choice known.

To promote inclusion, leaders can sponsor, promote and advocate diverse newcomers in their team by asking for their input (without putting them on the spot), giving them the opportunity to lead a project or an idea they proposed, and mentoring or seeking appropriate mentors for them.

In the context of alternative dispute resolution, organisations such as the CIArb, Racial Equality for Arbitration Lawyers (“REAL”) and the Rising Arbitrators Initiative (“RAI”) are leading the way by promoting arbitration practitioners, amplifying their voices within the sector, providing sponsorships and publishing their diverse members’ profiles.

To be included, from time to time, one must also muster the courage to challenge the status quo and hold leadership accountable. While it is not easy and acts of exclusion are often unintentional, sometimes it takes only one act of bravery to create change in an unconscious person’s mindset, leading them to seek awareness and develop a more inclusive environment for the benefit of all.

Your opportunity to be inclusive or to be included

Following this year’s CIArb UAE Branch Committee Elections, the committee is more diverse than ever, and it continues to welcome and encourage diversity and inclusion both at the leadership and at the membership levels. Diversity and inclusion are never ‘Done’.

This Newsletter is an editorial offering, which as well as being a means to engage the Branch’s approximately 900 members, is intended to be a tool for inclusion.

The vision for this Newsletter was born out of a strong desire to build on the diversity and inclusion efforts of the CIArb UAE Branch and the CIArb as a whole. The idea is to create opportunities for members to be more connected and to get to know one another better, have a platform to exchange thoughts on ADR and provide development opportunities amongst members.

This offering has only been possible thanks to the efforts of a dedicated team of members, who transformed into authors, interviewers and editors, and contributors who responded to our open-invitation to participate in it. The invitation remains open to all for our next Newsletter.

We invite your suggestions on how we can be more inclusive and we hope that you will take the opportunity to be included by:

• Submitting articles for publication;
• Volunteering to be interviewed;
• Engaging with the newsletter’s content through social media;
• Participating in our surveys to tell us how we can serve you better and make our community a more inclusive one;
• Empowering one another;
• Participating in our Mentorship Programme;
• Celebrating each other’s achievements; and
• Keeping in touch with one another to build an active diverse community of dispute resolution practitioners in the UAE, amongst others.

I would like to see this as just the start of our conversation in this space, and would love to hear your thoughts on what we should do next.

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Reshma Oogorah is a Fellow of the Chartered Institute of Arbitrators and the Public Relations Officer of the CIArb UAE Branch. She works as Legal Counsel and sits as arbitrator through her independent legal practice, Niyom Legal, and can be contacted on reshma@niyom.legal.

1. Gallup’s 2018 report “3 Requirements for a Diverse and Inclusive Culture”
2. Hacking Diversity with Inclusive Decision Making, Cloverpop Whitepaper
3. Please read the disclaimer before taking the test
4. “When It Comes To Business Decisions, Diversity Is Not Propaganda”, Eric Larson – Forbes.com

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

Accomplishments & Past Events

CIArb UAE Branch Events and Training

International Arbitration: Module 1
April to July 2020

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Webinar on “Virtual Arbitrations in the UAE”.
26 June 2020 

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Webinar on “Life Cycle of Arbitral Proceedings (A practical look into the Arbitration Proceedings)”
26 July 2020

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Webinar on “Adapting mediation for the MENA region”
24 August 2020

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Training: Experienced Practitioner Route
September 2020 & 27 January 2021

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International Arbitration: Introductory Course
October 2020

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Peer Interviews
October 2020, February 2021 & April 2021 

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Accelerated Route to Fellowship
December 2020

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3-part workshop series on “Construction Contracts and Disputes resolution” in Arabic
December 2020

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International Arbitration: Module 2
December 2020 to May 2021 

CIArb Accomplishments

On 6 May 2021, the CIArb and the ICC hosted a joint online event titled “Fireside chat with arbitration and dispute resolution leaders”.   This was a thought-provoking chat with the new President of the Chartered Institute of Arbitrators, Ann Ryan Robertson C.Arb FCIArb and President-Elect of the ICC International Court of Arbitration, Claudia T Salomon FCIArb.  They discussed their plans for their respective institutions, how they intend to collaborate, and what their presidencies mean for the global arbitration and dispute resolution community.  

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On 19 May 2021, CIArb London, together with Queen Mary University London and the Young Canadian Arbitration Practitioners jointly hosted an online event on “Preparing Tomorrow’s Disputes Practitioner: The Future of Dispute Resolution Training”. The event was accompanied by a very lively discussion in the webinar chat, indicating significant interest in the topic.

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Other Newsworthy Events

On 10 June 2021 the Annual Roebuck Lecture took place online, given by The Hon. Lady Justice Joyce Aluoch EBS CBS MCIArb, (Rtd) Judge. The Roebuck Lecture, now in its 11th year, is named after the late Professor Derek Roebuck MCIArb and celebrates the very significant contribution he has made to the Institute over the years.

The lecture focused on ‘The impact of Singapore Mediation Convention on mediation and arbitration’ which was adopted by the UN General Assembly. 46 states signed the Convention there and then and today it has 53 signatories – including big economies like the U.S., China, India and many more. The Convention is a new instrument aimed at facilitating the resolution of international commercial disputes by rendering international mediated settlement agreements enforceable. This is a significant feature, previously awarded only to arbitral awards and come court judgements. It complements the New York Convention – but does not compete with it. Read the full article here: https://www.ciarb.org/news/preparing-tomorrow-s-disputes-practitioner-the-future-of-dispute-resolution-training/

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Are we on the cusp of a new era in Dubai dispute resolution?

By Hari Krishna FCIArb

New DIFC Founding Law

His Highness Sheikh Mohamed Bin Rashid Al Maktoum, in his capacity as the Ruler of Dubai, recently issued Dubai Law No 5 of 2021 concerning the Dubai International Financial Centre (“DIFC”) (the “New Founding Law”). The New Founding Law was published in Dubai Official Gazette No 514 on 9 May 2021 and replaces Law No 9 of 2004 (as amended) (the “Old Founding Law”).
The New Founding Law expands the objectives of the DIFC and puts in place a clearer regulatory framework based on the experience gained from the functioning of the Old Founding Law over the last 17 years. Of particular interest to members of the CIArb are the following developments:

• the expansion of the objectives of the DIFC to include the promotion of “the position of the Emirate as an international centre for dispute resolution and settlement”;
• the dissolution of the Dispute Resolution Authority and the devolution of its functions to the DIFC Courts, DIFC Authority, and the Arbitration Institute (which is now recognised as an independent “DIFC Body”); and
• the suggestion in the New Founding Law that a new law will be issued to the replace the 2004 Judicial Authority Law (that establishes the DIFC Courts).

The dispute resolution landscape in Dubai

“Conduit” jurisdiction: Article 14(d) of the New Founding Law suggests that a new Judicial Authority Law will be issued to replace the 2004 Judicial Authority Law. This would be a welcome move as it is an opportunity to clear up the difficulties encountered with the “conduit” jurisdiction. A number of practitioners have expressed the hope that this will lead to the dissolution of the Joint Judicial Committee or at least a change of focus of that body, so that the DIFC Courts will no longer be subject to a judicial veto.

Arbitration Institute: Under the old regime, the Arbitration Institute was (albeit briefly) a subset of the Dispute Resolution Authority. Its role seemed to be limited, in practical terms, to managing the operations of the DIFC-LCIA Arbitration Centre. The Arbitration Institute had no role with regard to EMAC, which had its own separate governance mechanisms, or with regard to the DIFC “branch office” of DIAC.

As an independent DIFC Body under the New Founding Law, one would expect the Arbitration Institute to have the ultimate authority and responsibility in respect of arbitral institutions functioning within the DIFC. As EMAC and DIAC are entities formed by a Decree of the Ruler, this is bound to be the most closely watched aspect of the formation of the “new” Arbitration Institute. It is worth mentioning, of course, that the DIAC Arbitration Rules have been frozen in time for some years, and the arbitration community has been waiting for progress on this front.

Gazing into the crystal ball

It is tempting to think that the expanded objectives of the DIFC effectively mean that all disputes of an “international” nature will henceforth fall within the jurisdiction of the DIFC Courts – or that all Dubai arbitration will now be automatically deemed to be DIFC-seated. Historically, no court has willingly given up its own jurisdiction and one ought not to expect anything different from the onshore courts in Dubai. Further, the constitutional nature of the DIFC as a “financial free zone” with definite geographical borders imposes its own limitations.

The expanded objectives of the DIFC need to be seen in the context of the new focus at the federal and local government levels on making the UAE an attractive foreign investment destination. Anecdotal evidence suggests that foreign investors prefer the DIFC over the onshore judicial system. Therefore, it is only logical that “client choice” will prevail in these matters. Accordingly, it seems worth making the following predictions:

• the Arbitration Institute will become the sole governing / administrative body responsible for international arbitration in Dubai;
• Dubai will continue to offer all three arbitration models (ad hoc / light touch, “ad valorem”, and “time spent”); and
• jurisdictional conflicts between the “onshore” courts and the DIFC Courts will henceforth be viewed through a “client choice” perspective, resulting in enhanced predictability of outcomes for investors.

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Hari Krishna is a Fellow of the Chartered Institute of Arbitrators. He is the founder and CEO of Nimble Legal and can be contacted on hari@nimble.legal

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

To submit an article for publication please contact our editors, Sadaff Habib, Fatima Balfaqeeh or Reshma Oogorah.

Recent case law under the UAE Federal Arbitration Law No. 6/2018

by Soraya Corm-Bakhos MCIArb

Dubai Court of Cassation Case No. 990/2019 dated 5 April 2020 on the recoverability of parties’costs in DIAC arbitrations

Since the issuance of a judgment of the Dubai Court of Cassation back in 2013¹, the recoverability of parties’ costs in arbitrations conducted under the DIAC Rules is a persistent issue of DIAC arbitrations.

In a recent ruling dated 5 April 2020, the Dubai Court of Cassation confirmed its previous line of cases on the subject-matter but appears to have added a new requirement for the recoverability of counsel’s fees in DIAC arbitrations².

In this case, the parties’ legal representatives signed terms of reference in which the parties expressly authorised a DIAC appointed tribunal to determine and award fees and costs, including legal costs.

The tribunal issued a final award in which it ordered the claimant (who was partly successful in its claim) to pay the respondent’s legal costs in an amount exceeding AED 4 million. The claimant sought nullification of the award before the Court of Appeal on the basis that its legal representatives were not themselves authorised to agree to grant the tribunal authority to award legal costs in the terms of reference.

The Court of Appeal agreed with the claimant and partially annulled the award insofar as it related to the award of legal costs. Upon further appeal by the respondent, the Court of Cassation upheld the Court of Appeal’s judgment.

In rendering its decision, the Court of Cassation noted that:

• arbitration is an exceptional means of dispute resolution that involves parties waiving their rights of recourse to court (in line with prior UAE case precedent);
• for that reason, the UAE Federal Arbitration Law requires that an arbitration agreement is made by a person specifically authorised to arbitrate (Article 4(1) of the UAE Federal Arbitration Law); and
• parties’ legal representatives in arbitration are only able to exercise powers and duties properly conferred upon them through a power of attorney and cannot exceed those powers.

In this case, the Court of Cassation endorsed the Court of Appeal’s reasoning, which noted that when a party’s representative is authorised by a power of attorney to agree to arbitration, appoint arbitrators, sign terms of reference and with respect to other matters related to a dispute, this authorisation cannot extend to an authority to agree to grant an arbitral tribunal power to award legal costs (even if the legal costs relate to the arbitration in question).

In other words, for a legal representative to agree for an arbitral tribunal to award legal costs, they now require a power of attorney granting them the express authority to do so.

Against this background, to mitigate the risk of annulment of an award of legal or counsel fees, it is essential for parties involved in DIAC arbitrations to:

1. Ensure that their lawyers’ powers of attorneys expressly and specifically state that they have the authority to agree on behalf of their clients that the tribunal has to the authority to award lawyers’ fees.
2. If the arbitration agreement does not include express wording empowering the tribunal to award lawyer’s fees, the parties should ensure that the terms of reference clearly set out and describe the various parties’ costs that the tribunal has authority to award.

It is to be hoped that the DIAC Rules will soon be amended to include an express power for the tribunal to award and allocate parties’costs, including counsel fees. Pending such a revision, parties may wish to reconsider arbitrating disputes under the DIAC Rules; instead, they may opt in their contracts to submit disputes to arbitration under other institutional rules such as the ICC Rules or the DIFC-LCIA Rules, which expressly provide for the recovery of legal costs.

Dubai Court of Cassation No. 284/2020 dated 3 June 2020 on the competent authority to issue interim measures

In a ruling dated 3 June 2020, the Court of Cassation clarified the procedure for challenging interim orders issued in support of arbitration proceedings.

In this case, the claimant subcontractor successfully applied to the President of the Dubai Court of Appeal under Article 18(2) of the Federal Arbitration Law³ for an interim order imposing a precautionary attachment on two bank guarantees issued in favor of the respondent real estate development company to prevent the latter from calling the guarantees. The respondent real estate company challenged the interim order by filing a grievance before the Court of Appeal, which dimissed the grievance on procedural grounds for failure to follow the required procedure. Upon further appeal to the Court of Cassation, the respondent argued that the Court of Appeal had erred in deciding that under Article 18(2) of the Federal Arbitration Law only the President of the Court of Appeal was competent to amend and/or cancel its order. The Court of Cassation upheld the decision of the Court of Appeal and confirmed, by reference to Articles 18 and 21(1)⁴ and (4)⁵of the Federal Arbitration Law, that an interim or precautionary measure related to arbitration proceedings governed by the Federal Arbitration Law may not be nullified except by a decision issued by the authority which made the order, be it the arbitral tribunal or the President of the Court of Appeal. Therefore the ordinary procedures under the UAE Federal Civil Procedure Code (and its Executive regulations) related to interim and convesrvatory measures do not apply where parties have agred to resort to arbitration to resolve their underlying dispute.

This decision essentially clarifies that unless the contracting parties have expressely agreed to seeking and obtaining interim measures from the summary judge under the UAE Federal Civil Procedures Code, the jurisdiction to decide on interim measures will remain with the arbitral tribunal or the President of the Court of Appeal.

Dubai Court of Cassation Case No. 1308/2020 dated 3 March 2021 on the incorporation of an arbitration clause by reference to FIDIC general conditions

In a recent judgment dated 3 March 2021, the Dubai Court of Cassation ruled that incorporation by reference into a construction contract of the 1987 FIDIC Red Book General Conditions of Contract (the “FIDIC Red Book”), does not not automatically mean that the parties are bound by the arbitration clause at Clause 67 of the FIDIC Red Book.

In this case, the underlying dispute related to the construction of a villa. The amount in dispute was around AED 20 million.

The employer sued the contractor before the Dubai Court of First Instance, which found that the Dubai Courts have jurisdiction over the dispute. The contractor appealed and the Court of Appeal overturned the first instance judgment on the basis of the arbitration clause included at Clause 67 of the FIDIC Red Book, which the Court considered had been incorporated by reference. The employer challenged the Court of Appeal’s decision. The Court of Cassation overturned the Court of Appeal’s decision and ruled that the arbitration clause was not enforceable.

In reaching its decision, the Court of Cassation relied on Article 7 of the Federal Arbitration Law, which provides that an arbitration agreement must be in writing, otherwise, it shall be null and void. This provision of the law confirms that the arbitration agreement is a “formal” contract that should be concluded in a written document. The “in writing” requirement under UAE law is not simply a matter of proof but a formative element of the agreement to arbitrate. Article 7(2)(b) of the Federal Arbitration Law has expanded the meaning of “in writing” to include the validity of an arbitration agreement incorporated by reference to standard conditions or to any other document that includes an arbitration agarrement but provided that such referral is “clear as to make that clause part of the contract”.

This judgment of the Court of Cassation is significant in that it confirms that the reference to the arbitration clause in another document must be explicit and specific both in its meaning and in expressely stating that the arbitration clause forms part of the parties’ agreement. Contracting parties who wish to adopt general conditions in a model contract should make sure to explicitly mention the arbitration clause referenced there as otherwise the UAE courts are likely to retain jurisdiction. In other words, it is not sufficient for contracting parties to make a general referral to all the provisions of the model contract to be bound by the arbitration clause. Parties should instead either (i) agree a separate arbitration clause in the signed special conditions of contract or (ii) make sure to explicity state in their special conditions of contract that the arbitration clause in the FIDIC Red Book (or any other model contract) that is incorporated by reference is explicitely agreed and intended to apply.

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Soraya Corm-Bakhos is a Member of the Chartered Institute of Arbitrators. She works as Counsel for Watson Farley & Williams (Middle East) LLP and can be contacted on SCorm-Bakhos@wfw.com

1. Case No. 282/2012 dated 3 January 2013.
2. See Nayiri Boghossian, “Is an Award on Attorneys’ Fees Enforceable in the UAE?”, Kluwer Arbitration Blog, October 28 2020, at http://arbitrationblog.kluwerarbitration.com/2020/10/28/is-an-award-on-attorneys-fees-enforceable-in-the-uae/, for an exhaustive commentary of this ruling.
3. Article 18(2) provides: “The president of the Court may order, upon request of a party or upon request of the Arbitral Tribunal, interim or precautionary measures, as he may deem necessary, for the current or future arbitration proceedings, whether before or in the course of the arbitration proceedings”.
4. Article 21(1) provides in relevant part: “Subject to the provisions of Article 18 of the present Law, and unless otherwise agreed by the Parties, the Arbitral Tribunal may, upon request of a party, or on its own initiative, order either one to take interim or precautionary measures as it may deem necessary and as required by the nature of the dispute, and in particular […]”.
5. Article 21(4) provides: “A party in whose interest an interim order is granted and upon a written authorisation from the Arbitral Tribunal, may request the Court to grant an order for the enforcement of the order issued by the Arbitral Tribunal or any part of the same, within fifteen (15) days after having received the request, and copies of the authorisation or enforcement request under this Article shall be sent to all other Parties at the same time”.

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

To submit an article for publication please contact our editors, Sadaff Habib, Fatima Balfaqeeh or Reshma Oogorah.

Differing Site Conditions: are Geotechnical Baseline Reports a step in the right direction?

By Nebojsa Pavlovic FCIArb

Differing Site Conditions are just one of many risks in construction projects. Softer than anticipated soil / presence of rock, higher level of groundwater, methane or running sand in tunnelling, aggressive groundwater, cobbles, clay layers, voids, expanding soil and fossils are caused by nature. Manmade obstructions such as utility lines, foundations, archaeological remains, contaminated soil / groundwater, asbestos, toxic waste, may create the very same problems as natural causes.

Differing Site Conditions may negatively impact a Contractor’s progress as he may need to change the working methodology, planned resources may not progress at the planned rate, extra works may be required and, in some cases, the execution of the contract may become impossible. Change in the quantities, increased cost of (imported) material or reduced profit, may also come under a wide umbrella of Differing Site Conditions.

For more than 100 years, ways of covering this risk have been evolving: the industry recognized the importance of this issue; Contract Law paved the way for the development of Differing Site Condition Clauses, and in recent years, there has been the development of a formalized interpretative report called Geotechnical Baseline Report (GBR) which serves to properly share the risk of differing site conditions.

The aim of this paper is to evaluate if an addition of GBRs into most often used Standard Conditions of Contract in the UAE improved the risk sharing mechanism that existed before and what improvements are necessary to maximize the benefits that the addition of GBRs may add to future projects. The findings are based on the author’s experience on two projects in Dubai that included tunnelling and heavy excavation works.

Risks

Common Law does not recognise risk sharing per se. Contracts, in their basic form, treat the risk of differing site conditions as any other risk that might materialize on the Project. One Party agrees to deliver (build) the product and hands it over within agreed time for a fixed price. In case any risk materializes, the same Party is obliged to deal with it and, if necessary, compensate the other party for the damages associated with that risk.

Protection from differing site under common law is possible only when a Contractor can prove breach of contract. There are several legal doctrines that are available to the Contractor in his effort such as misrepresentation, mistake, frustration, hardship and even making the contract voidable¹.

As a measure of risk reduction, site investigations were often included to accompany construction tenders. Risks associated to differing site conditions may have decreased to a certain extent but not entirely removed by providing site investigations. There are issues related to ownership of the site data information, their interpretation and responsibility of their correctness. Results of geotechnical tests are facts, but their interpretation is a critical part of this equation.

The addition of a Differing Site Condition Clause has brought some relief as the Contractor got the path within the contract, to administer claims related to differing site conditions, as the proof of breach of contract was no longer needed. Original clauses, developed by the US Federal Government, recognised two groups of conditions:

• Conditions that materially differ from the ones given in the Contract (Unforeseen)
• Conditions that differ from the conditions ordinarily encountered in the area (Unforeseeable)

Again, it was not sufficient, as the major disagreement between factual and interpretive data remained to be a stumbling block for the parties to resolve the disputes related to differing site data. There was a need to have some document, within the Contract, that would serve as a basis for the comparison between “contracted” site conditions and the actual ones.

Geotechnical Baseline Report

Geotechnical Baseline Report (GBR) is a baseline or a reference that serves as a comparison tool where the Contractor wishes to establish that the actual conditions are materially different from the anticipated conditions. This document would serve as agreeable interpretation and would therefore be seen as fact rather than interpretation.

It was expected that GBRs would appear in the tenders for heavy civil engineering works in the UAE. A rise of metro, deep stormwater and wastewater tunnels paved the way for various government organizations in the GCC to look closely to minimizing the risks associated with differing site conditions, and the inclusion of GBRs seemed logical.

The problem was that most of these employers (predominantly government bodies) use a heavily amended FIDIC Set of Contracts for the Design-Bid-Build Contracts (Red FIDIC 1987). The first major change of these conditions was its adjustment to the Design-Build type of contracts where the original document was heavily modified in order to suit a new type of certification and sometimes new parties (Design Professional appointed by the Contractor).

The addition of GBRs provided another layer of uncertainty as it appears that the clients considered GBRs as a more detailed soil investigation report and not a powerful tool that may minimize disputes related to changed site conditions.

Development of GBRs

There are several steps in the development of the GBRs:

• Geotechnical Factual Report (GFR) that contains the results of the investigations
• GBR for Bidding (GBR-B) that contains interpretation by the Employer’s Designer
• GBR for Construction (GBR-C) which is the document developed further by the Bidder and agreed with the Employer

GBRs may be fully prepared by the Employer (Design-Bid-Build), but as they are predominantly used on the Design-Build projects in the UAE, this means that GBRs go through all three steps.
GBRs, in their most sophisticated form, may, apart from representation of contractually accepted interpretation of the site data, provide the following:

• A mechanism for the price adjustment for experiencing the broadest range of conditions and variations in ground conditions. The Contractor should develop, and incorporate in the GBR, unit price facilities, for all possible conditions resulting from the GFR. Dedicated cost breakdowns should be provided for various parameters, such as earth pressure, number of cables, amounts of groundwater inflows, grouting volumes used, amongst others.
• The basis for the adjustment of a Project Schedule requires sophisticated progress update and developed metrics for adjustment of the Contractor’s performance.
• In both cases, the Employer’s risks may become opportunities as the Employer may benefit in both time and cost².

The problems found, as per the author’s experience, are:

1. GBR-Bs are prepared by Designers who did not want to make any conclusion unless absolutely necessary, although they were well respected specialists in the field. The solution might be that professional companies, detached from the main designer, are appointed instead, so the GBR-Bs are prepared in way that Employers benefit from their special knowledge, expertise and unbiased approach. In that case, the bidders may minimize expenses associated with preparation of GBR-C, so they can also appoint more costly experts and provide a robust baseline.
2. A common practice for many construction contracts in the region is that the Bidders are encouraged to perform their own investigations. This clause remained unchanged but should be deleted. It is the Employer, following the suggestions of the bidders, who should update the investigation results and their interpretation, as recommended by ASCE³.
3. Differing site condition clauses (originating from Red FIDC) are also heavily amended and the shift was towards stricter time bars and more complicated administering of differing site conditions, resulting in almost all differing site conditions ending with severe disruption and delay and never-ending claims. These clauses need full revision, in order to accommodate the reference to GBR-C and their impact to the process of the assessment of change and its influence to cost and time. FIDIC’s references to foreseeability and Experienced Contractor are redundant with the existence of a carefully crafted GBR.
4. Submission of the GBR-C must take place before the signing of the contract and ideally during contract negotiations when both parties are willing to accept a balanced share of the risks. The current practice is that the Contractor can submit a GBR-C whenever he wishes, thereby losing the opportunity to set the baseline when all parties are willing to agree; the best time for closing the GBR-C is during contract negotiations.
5. Incorporation of a Schedule Adjustment, developed under the Emerald Book might be far in the future but, adjustment of costs, determined by the GBR-C should be an immediate target for all employers that wish to use GBRs. They should also think about appointing a specialist company to develop minimum requirements or standard template for GBR-Bs that would accompany their tenders in the future.
6. The rule “if not in the GBR, is not relevant” can hurt both parties. So, careful control from both parties is essential for success of GBRs’ incorporation in the Contract.

Conclusion

A sharp turn towards new standard conditions (Yellow Book 2017) would be the best choice for the large Design-Build Projects. However, one should not wait for that to happen to incorporate GBRs; employers should invest in finding the best way to incorporate them into their existing conditions of contracts. The phase of GBRs’ full implementation, in accordance with the latest Emerald Book, should be the aim for all employers that encounter works heavily affected by physical conditions.

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Nebojsa Pavlovic is Fellow of the Chartered Institute of Arbitrators and a Committee Member of the CIArb UAE Branch. He is the General Manager of Ad Litteram Consultancy FZ LLC and may be contacted on nebojsa.pavlovic@adlitteramco.com.

1. J. Bailey, What lies Beneath: Site Conditions and Contract Risk, SCL (No. 137, issued in 2007)
2. This is the feature of the latest FIDIC Conditions of Contract for Underground Works (the Emerald Book)
3. J. Essex, Geotechnical Baseline Reports for Construction, Suggested Guidelines, (2nd edn ASCE 2007)

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

To submit an article for publication please contact our editors, Sadaff Habib, Fatima Balfaqeeh or Reshma Oogorah.

Without prejudice

by Mohieeldin Elbana MCIArb

One of the cardinal principles in the space of amicable settlement discussions between commercial entities is the ability to openly negotiate and communicate without the fear that whatever they discuss can somehow be used against them later on, if negotiations fall apart. The way these discussions are precluded from reproduction in the realm of a formal dispute is the principle, which is commonly referred to as, “without prejudice”.

As many will know, however, this principle is not recognised under onshore UAE Law. In fact, lawyers in onshore courts and onshore-seated arbitrations are permitted to use, and rely on, any communication even if they were exchanged in the context of good faith negotiation discussions and referred to as being “without prejudice”.

A new development in the UAE Federal Courts may bring about winds of change. This is very positive news.

By virtue of the Federal Law no. 17 of 2016, court mandated pre-trial mediation and conciliation centres have been established. More recently, however, the Federal Law no. 5 of 2021 issued on 29 April 2021 (the “Amending Law”) amended the said law. One primary change introduced was the explicit reference to the creation of a forum where parties can have open settlement discussions without the fear that anything they discuss can be reproduced later. Indeed, Paragraph 2 of Article 10 of the Amending Law explicitly states that any discussions or negotiations shall not be reproducible before the courts.

The Amending Law is relatively new. It will be interesting to see how the courts deal with attempts of parties to contravene the new rules and what measures will be applicable to parties, or their lawyers, when such a contravention does occur.

This is, no doubt, a reflection of the UAE legislator’s objective to encourage parties to settle their disputes amicably. We hope to see a significant increase in the appetite for amicable settlements and for sister courts in the UAE, as well as in the region, to follow this model or introduce similar settlement friendly legislation.

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Mohieeldin Elbana is a Member of the Chartered Institute of Arbitrators and a Committee Member of the CIArb UAE Branch. He is a Senior Counsel at OGH Legal and can be contacted on mohieeldin.elbana@oghlegal.com.

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

To submit an article for publication please contact our editors, Sadaff Habib, Fatima Balfaqeeh or Reshma Oogorah.

Member profile : Sally Kotb FCIArb

Q. Tell us a little bit about your current role and what attracted you to this position?

A. I am an Egyptian Qualified lawyer and have been practising in the Middle East for 12 years. I am currently a Counsel in the UAE Dispute Resolution and International Arbitration Practice of Baker McKenzie Habib Al Mulla in Dubai, specializing in international commercial arbitration with particular focus on construction and energy disputes. I have acted as counsel and arbitrator in both English and Arabic under most leading institutional rules including the ICC, DIFC-LCIA, DIAC, CRCICA and ADCCAC.

My experience also includes drafting expert opinions on various legal concepts of UAE law in support of both domestic and international arbitrations. I am also often involved in providing strategic advice to clients early on before a dispute formally materializes with a view of safeguarding the clients’ interests and minimizing their litigious risks.

I have acted as the regional representative of the LCIA Young International Arbitration Group (YIAG) for 3 consecutive years and have earned the internationally-recognized designation of Fellow from the prestigious Chartered Institute of Arbitrators (FCIArb).

In addition to organizing and speaking at conferences, I am also a registered trainer of the Dubai Legal Affairs Department (DLAD) training program, which aims to provide training and professional development to advocates and legal consultants in the Emirate of Dubai.

I am admitted in Egypt and was a member of the Egyptian Bar Association since 2006. I am also the author of numerous articles and guides on arbitration, including the Annotated Guide to Arbitration in the UAE – Volume 1: The UAE Arbitration Chapter, Thomson Reuters, 2014, in which I was involved as co-author.

I always dreamt of being a lawyer since I was young believing that it would help in changing the world to a much better place. I used to watch an Egyptian TV programme called, “Behind the Cell” back in the 90s whereby criminals used to be interviewed to tell their story and the reasons that have led them to commit their crime. As much as I felt the pain of the families who had lost their loved ones, I was also very keen to focus on the offenders’ background, the environment they were brought up in, their education if any etc. I felt that being a disputes lawyer would help me solve peoples’ problems and allow me to protect the weak and poor people.

Q. When and how did you get to this position?

A. I graduated from Alexandria University, School of Law in 2006 following which I have Joined Zulficar & Partners Law Firm in Cairo. At the beginning of my career I was keen to be exposed to various areas of law, including maritime law, corporate law, IP law etc before specializing in a special area of law.

During my time at Zulficar & Partners, I was part of the arbitration team that was spearheaded by Prof. Dr. Mohamed S. Abdel Wahab. During my time at Z&P, I had the privilege to work in a great arbitration team and handle various aspects of the arbitration process, including in terms of preparing first cuts of various submissions and applications with the Tribunal and opposing party.

I moved back to the UAE in 2012 where I joined Baker McKenzie Habib Al Mulla as a mid-level associate and continued my career-progression with the same firm until I got promoted to Counsel on 01 January 2019.

I applied for the position through an application that I have filed with our Firm’s Global Management and Promotion Committee, which also enclosed a detailed business development plan. I had to meet a very strict number of performance, including development and financial criteria. I have worked closely with my line managers in Dubai to ensure that I met the required criteria and demonstrated that I can deliver on my business plan going forward in line with the Firm’s Global and Regional Strategy.

My detailed application was submitted to the EMEA Executive Committee in early December 2018 and has been thankfully approved back then leading to my promotion from Senior Associate to Counsel in January 2019.

Q. How is you career linked with the CIArb and at what point did you join the CIArb?

As an arbitration lawyer, I was very keen to obtain the certified accreditation of Fellow from the Chartered Institute of Arbitrators as the world’s leading professional body for dispute avoidance and management.

I took the Accelerated Route to Fellowship Course (Modules 3 and 4) in 2016, which was offered through one of the CIArb local offices in Dubai in 2016. It involved intense number of workshops and mock exams that mirrored the procedural milestones that are typically encountered in international arbitration process. Module 4 was focused on International Award Writing and was a great opportunity to practice in real time how an Award should be drafted in line with international arbitration standards and rules.

Whilst Modules 3 and 4 were advanced arbitration programmes, it was structured in a way that embraced candidates from different backgrounds, including, engineers, professors, etc who did not necessarily have a legal background. The instructors were highly regarded arbitration practitioners who have acted as arbitrators in different industry sectors for many years and were able to convey their experience in a very engaging and simple way. The fact that the CIArb also offers different levels of courses is beneficial to encompass a wide variety of candidates from different professional backgrounds and be a pathway for anyone who is interested to commence a career in arbitration.

Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?

A. I am grateful that I have managed to create a brand for myself and enhance my connections especially in the Dubai and Egyptian markets. I am also grateful that I am now at the top of my professional career as an arbitration lawyer, an arbitrator and as a first time mother to my one year old baby girl.

Achieving the Fellowship accreditation has enabled me to strengthen and enhance my connections in the arbitration community, which is generously offered to me through CIArb’s network and operations in multiple jurisdictions. While I recognize that receiving the CIArb Fellowship does not automatically lead to arbitrator appointments, it was definitely a door opener for me to receiving further arbitral appointments and be considered by leading arbitration institutions for arbitrator nominations either a sole arbitrator or co-arbitrator.

I secured my first appointment via a decision made by the Executive Committee of the Dubai International Arbitration Centre in 2014 where I acted as a sole arbitrator in a real estate dispute in connection with a hotel development in Dubai. The dispute was governed by UAE law and subject to the DIAC Rules. It was a 3 million Dirhams dispute and relatively straightforward involving the usual claims pertaining to the delay in handover of sold units by their anticipated completion date.

I was very excited to get my first appointment and made every effort to ensure it was conducted in an expedited and efficient manner. Although arbitration institutions in Dubai were taking steps to encourage the appointment of young arbitrators especially in small claims, this was not very well perceived by some of the parties. For example, I recall in one of my early cases, the Respondent challenged my appointment on the basis that I was young and not a UAE national and therefore would not grasp the nuances of UAE law. The Respondent’s application was rejected by the Executive Committee and I was informed by the centre following the completion of the arbitration that the Respondent tried to challenge my award before the UAE Courts, which I understand was unsuccessful. I was keen to leave a first good impression with the Executive Committee, which enabled me to secure future arbitrator appointments through DIAC and other arbitration institutions, including the DIFC-LCIA, ICC, ADCCAC, BCDR, & CRCICA.

In a nutshell, the main factor for getting arbitrator appointments is to seek every possible opportunity to be visible and have a reliable name in the market and among your peers.  This could be through publishing articles and client alerts, seeking speaking opportunities and also obtaining accredited certifications such as FCIArb. I also found that strengthening my relationship with my peers and supporting them in their initiatives very helpful and generated new opportunities for me either as arbitrator, being invited to speaking engagements and even recently being appointed as a Regional Representative to the Middle East ERA Pledge Subcommittee and a Member of the ERA Pledge Young Practitioners Subcommittee.

Acting as administrative secretary to arbitration tribunals is also very important and has allowed me to grasp how arbitrations are conducted procedurally from an arbitrator’s perspective. I had the privilege to act as administrative secretary to several highly regarded arbitrators in the arbitration field, which have in turn exposed me to dealing with several case managers in leading arbitration institutions. Over the years, I was able to secure my own arbitrator mandates either through party nominations or institutional appointments.

Q. What are your aspirations for the future?

I am keen to continue progressing in my professional career and strengthen my connections with my clients and peers in the arbitration community. I am also keen to increase my portfolio of arbitration nominations and registrations with arbitration institutions. I am proud that I am currently sitting as a sole arbitrator in a BCDR arbitration, which was one of the arbitration institutions in which I was keen to be registered.

Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?

Passion humility and hard work are the three main traits for a successful legal career. Be eager to learn and grasp new experiences no matter how far you progress in your career. You should always be learning especially in a knowledge driven field like the legal industry to keep pace of constant business and legal developments. On a personal level, it is very important to be humble and capable of demonstrating empathy and respect to your colleagues in order to maintain your success. Last but not least, always keep in mind that “confidence is healthy, ego is destructive.”

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Sally Kotb is a Fellow of the Chartered Institute of Arbitrators. She works as Counsel for Baker Mckenzie Habib Al Mulla and can be contacted on Sally.Kotb@bakermckenzie.com

To be interviewed in future Newsletters, please contact our interviewer Katarzyna (Kasia) Halliday at khalliday@thinkbrg.com

Member profile : Mohamed Arafa MCIArb

Q. Tell us a little bit about your current role and what attracted you to this position?

A. I am the Contracts Director of a leading General Contracting Group of Companies in UAE, based in Dubai with an annual turnover of AED 1 Billion. I report to the Managing Partner and I am one of the four Board Members of the organization. My job is full of perks, daily challenges and problems to solve. But my passion for redefining Commercial and Contracts Management as a key success factor in leading contracting firms is what motivates me about my job, in addition to looking after the growth of an ambitious firm which shares the same passion.

Q. When and how did you get to this position?

A. Actually, I started to practise contracts management 18 years ago, and I have practised in different jurisdictions such as Singapore, Malaysia, Indonesia, Brunei, India, in the GCC and in Africa. Upon graduation, I covered the junior level gaps in many areas of the Construction lifecycle for a couple of years and this confused me about the path to choose for building up my career.

However, it enriched my knowledge of and familiarity with construction-related works: from feasibility study, business case, concept design, detailed design, permits, tendering, procurement, planning, pre/post contract establishments, accounting HR, execution, change control, snagging to the close-out of diversified sectors such as the Residential, Commercial, Hospitality, Medical, Industrial, Defence, Aviation and Utilities sectors.
Consequently, over the years, I recognized that loving what you do at a younger age to do what you love in the future is the key to succeed.

Moreover, I realized while getting involved in different departments within those sectors that their success depended on how they integrate as a whole, defining the relevant scope and monitoring its implementation to avoid internal/external conflicts, uncertainties, doubts and subsequent disputes (meanwhile to have early disputes avoidance approaches and preventive measures rather than corrective actions).

In parallel, I learnt about my interpersonal soft skills regarding problem solving and coaching which were noticeable by others too, and I recognized my inclination to acquire Commercial and Contractual practical knowledge and my desire to gain necessary hard skills, until I gained a sound level of experiences and confidence to grow and become a Contracts Director. I totally agree with the quote “do not look for title, it will look for you” and also “title does not make you, you make the title”.

Moreover, the knowledge train never stops and a continuous learning path is what made me who I am!! Building a career consistent with your interpersonal skills helps to tailor your career path to suit you and enhances professional development. In other words, learning what is truly suitable for you is smarter than learning what is just popular.

Q. How is you career linked with the CIArb and at what point did you join the CIArb?

A. I joined CIArb in the fourth quarter of 2020. Being a Contracts Specialist, I believe that my primary role is to avoid disputes. But conflicts arise sometimes. I am also responsible for all litigations and legal affairs in my organization. Some of those cases go through Arbitration. So, I decided to pursue an assessment to my qualifications and track-record through Expert pathway with the CIArb to achieve a recognisable certification in the same field.

Based on my research, I discovered that approximately 60+% of commercial disputes at Courts nowadays are related to the construction sector. Such cases are not analysed exclusively by the Courts but with the help of external experts who are hired to determine the entitlements and give recommendations for judgments. While I found that there are many construction experts in the market, I also observed that there is a shortage of experts who are sufficiently qualified to run arbitrations and/or litigations through an acceptable certification. Therefore, I decided to join the CIArb to obtain a certification.

Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?

A. For me, any project I successfully deliver to a Client in line with its objectives, and which is profitable to my Employer is an achievement. Projects need to be well planned, executed and controlled to avoid conflicts between the parties.
However, my biggest achievement is shifting people’s doubts about Contracts Management to confidence and trust. Initially, on many occasions, I noticed that people’s impression about Contracts Specialists is that they are trouble makers.

Now the same people approach me for problem solving to prevent issues. I prioritise interest-based negotiations over directive approaches with clients, colleagues and stakeholders. I have thus managed to secure many projects for the Employers I have worked for and looked after those projects’ delivery and achieved successful completions.

The CIArb certification has helped me to develop my own brand. While working towards the certification, I recognized that I am on the right career path for me. CIArb opens the door for a wide range of benefits and communications with specialists with similar interests to share ideas, practices and experiences.

Q. What are your aspirations for the future?

A. To have my own business in Commercial and Contracts Consultancy and to build an international brand where I can offer my services from Far East to West.

Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?

A. Pay attention to details to grow fast at younger age. Never ever give up, try to identify your weaknesses and turn them to opportunity. Stick to the quality of what you do more than quantity which will improve over time. Coach the team (do not just lead them). Learn high-level info about each section of your business domain and be a specialist in one only.

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Mohamed Arafa is a Member of the Chartered Institute of Arbitrators. He is a Contracts Director with Parkway International Contracting of Dubai and can be contacted on mdmoustafa2010@yahoo.com

To be interviewed in future Newsletters, please contact our interviewer Katarzyna (Kasia) Halliday at khalliday@thinkbrg.com

Member profile : Liliia Pylypchyk ACIArb

Q. Tell us a little bit about your current role and what attracted you to this position?

Recently, I embraced a role of Delay Analyst, which is my first career step to the field of Alternative Dispute Resolution (ADR). I support an international team of experts in Pre-Dispute Advisory, Negotiation, Mediation and Arbitration cases in construction.

I have always appreciated the technical side and complexity of my Civil Engineering background. Yet, I always wanted to go beyond purely technical tasks. What particularly attracted me to my current role is that while it fully engages my technical background and experience, it requires me to investigate, analyse, interpret, consolidate and eventually communicate intertwined technical matters to a non-technical audience.

Being an ADR practitioner is not only about what you can do, but largely about who you are and which values you embody. The work becomes a creative and fully engaging process, where the end product will always reflect not only your skillset, but a part of who you are.

Q. When and how did you get to this position?

My acquaintance with disputes happened a couple of years ago when I was working for a contractor here in Dubai. Among other tasks, my role involved coordination with our commercial manager, who would give me small assignments related to contracts and claims. They quickly drew my interest and very soon I was convinced that it is the path I want to follow.

I started learning about planning, delay analysis, and getting into more details of contracts and after a while I was able to start assisting our commercial manager in construction claims preparation. However, once I got acquainted with a framework of ADR, it became clear that, that is where I belonged.

I owe a lot to the mentorship I received from my commercial manager. My genuine interest and his encouragement motivated me to perform all the hard work I have accomplished and eventually form a strong competitive background in delay analysis, which allowed me to make the transition to my current role.

Q. How is you career linked with the CIArb and at what point did you join the CIArb?

At the moment, I hold an Associate membership of CIArb, which I acquired after taking a course of Introduction to International Arbitration.
I took this course as I was interested in understanding the framework of ADR; I was still engaged with the contractor at that time. I believe it was a pivot point which defined my career aspirations.
As my current role is directly related to ADR, the knowledge and skills I obtained while preparing myself for the role, helped me to start contributing to the projects team quite rapidly, despite the fact that I was new to the field. The exposure I received widened my vision. So, now I can always keep an eye on the bigger picture while performing discrete assignments.
Furthermore, my CIArb membership allows me to remain acquainted with the latest industry trends as well as be in touch with like-minded people.

Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?

A. In my view, the most valuable aspect of my professional journey was the fact that I was actually able to make this change and start doing what really excites me.
It took me some time to discover and establish my current career path and it was not a journey of one step. But now I cannot underestimate the importance of doing what truly suits me.
I believe that the exposure that I received when I joined the CIArb helped me to refine myself before I even started my journey on this path.

Q. What are your aspirations for the future?

A. I am lucky to be surrounded by talented experts and I would be honoured to become a recognized ADR expert one day. It would be absolutely great to have an opportunity to lead and share experiences with a team of young professionals as well as contribute to further development in the field of ADR.

Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?

A. I believe that the key is in being open to knowledge, people and experience. It is essential to be mentored as well as to fuel your genuine interest with your own hard work. So when the right opportunity comes across, you will be ready to step up for a change.

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Liliia Pylypchyk is an Associate of the Chartered Institute of Arbitrators. She is an Analyst at Accuracy and can be contacted on liliia.pylypchyk@gmail.com.

To be interviewed in future Newsletters, please contact our interviewer Katarzyna (Kasia) Halliday at khalliday@thinkbrg.com

Committee Members 2021

Iryna Akulenka FCIArb
Chair
iryna.akulenka@gmail.com

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Fatima Balfaqeeh MCIArb
Vice-Chair
Fatima.balfaqeeh@gmail.com

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Michael Tonkin FCIArb
Honorary Secretary
MichaelTonkin@hka.com

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Conrad Bromley FCIArb
Honorary Treasurer
conradbromley@outlook.com

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Glenn Trueick FCIArb
Membership Secretary & Website Officer
Glenn.Trueick@fticonsulting.com

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Reshma Oogorah FCIArb
Public Relations Officer
reshma@niyom.legal

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Katarzyna Halliday MCIArb
Education & Training Officer
KHalliday@thinkbrg.com

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Arun Visweswaran ACIArb
YMG Representative
Arun.Visweswaran@CliffordChance.com

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Stuart Allan FCIArb
Committee Member
stuart_allan@me.com

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Asha Bejoy FCIArb
Committee Member
asha@atblegal.com

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Joe Durkin FCIArb
Committee Member
jdurkin@lcmfinance.com

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Mohieldiin Elbana MCIArb
Committee Member
momoelbana@hotmail.com

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Shani-Louise Foad MCIArb
Committee Member
shanifoad@hotmail.com

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Sadaff Habib MCIArb
Committee Member
s.habib@beale-law.com

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Nebojsa Pavlovic FCIArb
Committee Member
nebojsa.pavlovic@adlitteramco.com

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Faris Shehabi FCIArb
Committee Member
farisshehabi@incegd.com

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Robert Siliwinski FCIArb
Committee Member
r.sliwinski@alsuwaidi.ae

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Know your Committee : Fatima Balfaqeeh MCIArb – Vice-Chair

Q. Tell us about you and how you landed on the CIArb UAE Branch Committee?

A. My passion for the legal field has always been there since I can remember. I have always been advocating for something or the other which, with hindsight was not fun for my parents or school administrators. After attaining my Bachelor of Finance and Master’s in International Business, I kept finding myself incorporating aspects of commercial law into my daily work in the field of finance, contract, and procurement. However, despite my many attempts at specialising in law then, it didn’t always pan out for me due to family commitments.

As my career progressed in contracts and procurement, I found myself specialising more in disputes and dispute management, which motivated me to get certified as an arbitrator in 2015. That’s when I started building my career in the arbitration field. Later that year, I made the decision to commit to pursuing my LLB which, I have now done successfully and with honours. After getting exposed to the international ADR field more thoroughly through events in Dubai and speaking to many professionals, I enrolled myself into the CIArb membership to further my knowledge in 2017.

In 2019, I made the decision to participate in the election of Committee Members for the CIArb UAE Branch and have been honoured to be part of the CIArb UAE Branch Committee ever since.

Q. How has your experience been so far and what have been your contributions since joining?

A. I was able to work very closely with the members of the CIArb UAE Branch Committee in addition to members of the CIArb in the UAE and the ADR community as a whole. We conducted some informative and impactful trainings and networking events such as during the Dubai Arbitration Week, amongst many others. In particular, I organised the first Arabic Language Webinar 3-Part Series that was supported by the CIArb UAE Branch, focused on construction disputes, starting from signing of the construction contract all the way to resolving any dispute arising from the construction project.

Q. What are you seeking to achieve during your time on the Committee?

A. I would like really to encourage more UAE nationals to get involved with the CIArb UAE Branch, in addition to launching CIArb’s training in the Arabic language in the UAE.

Q. What does the CIArb strategy 2021-2023 represent for you?

A. CIArb’s strategy for 2021-2023 not only represents what the global ADR community requires, which is diversity and inclusion in all its forms, but also providing thought leadership in an ever-changing market dynamic and evolving legal requirements.

Q. What message do you have for others who would like to join the Committee and be more active in helping the CIArb meet its goals.

A. CIArb UAE Branch Committee Members are a very welcoming and inclusive group of professionals who are eager to engage with the wider membership. Your perspective and contribution are not only welcome but very much needed and valued.

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Fatima Balfaqeeh is a Member of the Chartered Institute of Arbitrators and Vice-Chair of the CIArb UAE Branch. She is the Managing Director of RKAH Legal Consultancy, sits as Arbitrator and Mediator, and can be contacted on info@rkahconsultancy.ae

Know your Committee : Michael Tonkin C.Arb FCIArb Honorary Secretary

Q. Tell us about you and how you landed on the CIArb UAE Branch Committee?

A. My CIArb journey started in 2004 when I first came to Dubai and I became heavily involved in the UAE Branch and its development. Once appointed as a Trustee of the CIArb from 2014-2018 I needed to step down from the Committee. Whilst I enjoyed my time as Trustee and subsequently with the Governance Review Working Party from 2018-2020 and did a lot of good work for the CIArb, I missed being a part of the Committee and the connection to UAE members that flows from that. It was therefore an easy decision for me to stand again for the committee during 2020. Just don’t ask me how I became Honorary Secretary, because it’s a blur!

Q. How has your experience been so far and what have been your contributions since joining?

A. I have been hugely impressed with the enthusiasm and energy of the committee and how together they are driving the branch forward. The diversity of the branch is wonderful. In terms of my contribution, other than increasing the average age, I would like to think that I have added experience and guidance taken from my 17 years of being involved in CIArb committees and working groups. We have a wonderful Chair and Vice Chair in Iryna and Fatima respectively, and it is great to be able to support them in their leadership of the Branch.

Q. What are you seeking to achieve during your time on the Committee?

A. My reason for being involved with the committee has always been about providing opportunities for others to achieve their goals. I have supported aspiring members progress from Associates to Members to Fellows, and sometime also achieve “Chartered Arbitrator” status, organised numerous major conferences and I have recently jointly completed a new CIArb training programme for Fellows. I find all of this extremely rewarding. If I can continue to do that and also support my fellow committee members in achieving their goals, then I will be happy.

Q. What does the CIArb strategy 2021-2023 represent for you?

A. A reflection of what our committee is focused on delivering. Notwithstanding, the voices of the branch members in telling us what they want is fundamental to our success and we encourage you to speak up.

Q. What message do you have for others who would like to join the Committee and be more active in helping the CIArb meet its goals.

A. Get involved! There is something for everyone and you won’t regret it…

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Michael Tonkin is a Chartered Arbitrator, Fellow of the Chartered Institute of Arbitrators and Honorary Secretary of the CIArb UAE Branch. He is a Partner with HKA and can be contacted on MichaelTonkin@hka.com

Jokamation

by Mohieeldin Elbana MCIArb

1) What would a lawyer name his baby? 
Sue (if a baby girl) or Bill (if a baby boy).

2) The planned capital of the UAE
At the time of creating the UAE constitution in 1971, a town by the name “Al Karama” was planned to be constructed, on the border between the Emirates of Dubai and Abu Dhabi within 7 years, to become the capital of the UAE. You may refer to Article 9 of the UAE Constitution.

Until the construction of the said town, Abu Dhabi was supposed to be the provisional headquarters of the UAE Union (that is, the temporary capital). Probably the local landline calling code (01) was reserved to be assisted to such (Al Karama) town. However, it was never constructed and does not exist now.

In 1996, the UAE Constitution was amended to provide that Abu Dhabi shall be the ‘permanent capital’ of the UAE. Therefore, Abu Dhabi was, and remains, the known capital to the UAE.

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Mohieeldin Elbana is a Member of the Chartered Institute of Arbitrators and a Committee Member of the UAE Branch. He is a Senior Counsel at OGH Legal and can be contacted on mohieeldin.elbana@oghlegal.com.

The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.

“Each one, Teach one”

Why mentoring?

Whether you are a seasoned practitioner, a mid-level practitioner or a beginner practitioner, mentoring is a useful way to connect, collaborate and co-create with peers.

No man is an island. And we need the support of our industry peers to continue to grow not only in arbitration but in any field.

So while our CIArb courses equip you with the academic knowledge our mentoring program is aimed to give you a platform to ask questions, to share knowledge and to broaden your skills to make you a successful dispute resolution practitioner.

How is the program structured?

The mentoring cycle will run on a yearly basis (watch this space for the date of the first cycle!).

There will be 4-6 mentoring groups with each group consisting of 1 mentor, 1 facilitator and 4 mentees.

Mentors: these will be senior practitioners, “seasoned” but not necessarily “salt and pepper.” They will be recognised and established practitioners and most importantly eager to impart their wisdom.

Mentees: will usually be “young” practitioners, either starting out in arbitration or under the age of 40 or curious with many questions.

Facilitators: will be those enthusiastic practitioners eager to participate and to facilitate the discussions and activities between the mentees and the mentors.

How can you join?

The mentoring program is open only to the CIArb UAE Branch members.
Further details of the program will be available on our website and on this blog soon.

Meanwhile, if you are interested in taking part in this exciting program whether as a mentor, a facilitator or a mentee, please reach out to Sadaff Habib on s.habib@beale-law.com with your CV and your membership level and we will see what we can do for you!

Credits & Contributors

The publication of our July 2021 Newsletter has been possible thanks to the contribution and support of the following individuals:

Contributors

Iryna Akulenka
Mohamed Arafa
Fatima Balfaqeeh
Soraya Corm-Bakhos
Mohieldiin Elbana
Sally Kotb
Hari Krishna
Nebojsa Pavlovic
Liliia Pylypchyk
Michael Tonkin

Newsletter Team

Chief Editor: Reshma Oogorah
Accomplishments: Stuart Allan
Announcements: Faris Shehabi
Articles: Sadaff Habib, Fatima Balfaqeeh
Jokamation: Mohieldiin Elbana
Members Interviews: Kasia Halliday
Membership: Kasia Halliday
Mentorship: Sadaff Habib

Design & Development: Chris Blackhurst

To contribute to our future newsletters, please get in touch with the appropriate member of our Newsletter Team.

To sponsor our next newsletter, please get in touch with Reshma Oogorah at reshma@niyom.legal

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