Leadership message from Arun Visweswaran, Chairperson of the CIArb Young Members Group, UAE Branch
by Arun Visweswaran, Chairperson of the CIArb Young Members Group, UAE Branch
It gives me great pleasure to write this Leadership Message as the Chairperson of the UAE’s CIArb Young Members Group in the first newsletter of 2022.
2021 was a momentous year for the UAE Chapter of the CIArb Young Members Group which, successfully hosted the global annual conference of the Young Members Group in Dubai for the very first time.
The theme for the conference was “Arbitration in a Changing World” – which was apt at this pivotal juncture in the world grappling with the changes brought about by the global pandemic. The users of arbitration have constantly strived to innovate and adapt arbitration to the wider changes in the world and therefore the conference was an opportune moment to look back at the evolution of arbitration and look to the changes that are in store for the future – be it from the perspective of climate change, technology or ways to further promote diversity and inclusion. The vibrancy of the discussions at the conference demonstrated the importance of these issues and we are glad to have played a small part in furthering the dialogue.
Speaking of change, we at the CIArb YMG decided to host the conference in a hybrid format to allow both in-person and virtual attendance – a first of its kind for the annual conference. This turned out to be significant as we managed to ensure the conference was accessible to CIArb members both in the UAE and across the globe. There were attendees from five continents attending throughout the day – something that may have been impossible even in normal times. We have set the precedent for future annual conferences and this is a welcome change as it promotes inclusion and connectivity amongst the CIArb community.
A key takeaway for me from the conference is the amazing breadth and diversity of the CIArb community. CIArb is one of the few global arbitration communities with chapters in numerous jurisdictions, and events like the annual conference provide a great platform to meet and connect meaningfully with CIArb members from across the globe.
What stood out for me from my discussions with CIArb members from other countries was how everyone at CIArb was keen to foster change and initiate programmes that would help develop CIArb members – no matter their area of expertise or level of experience.
The UAE CIArb YMG Committee shares the same goal. We are planning a host of events for 2022 and ideas to connect meaningfully with the young members of CIArb, including student members.
I therefore take this opportunity to encourage you to get involved with CIArb as you will definitely get something out of it. I look forward to meeting both new and existing members at these events!
Thank you
Arun Visweswaran is an Associate member of the Chartered Institute of Arbitrators, the Chairperson of the CIArb UAE YMG Branch Committee and the Middle East Representative of the LCIA’s YIAG. He is a Senior Associate with Clifford Chance LLP and has been based in Dubai since 2013.
By Reshma Oogorah FCIArb, Public Relations Officer of the CIArb UAE Branch and General Editor of the Branch’s quarterly newsletter
ByReshma Oogorah, FCIArb
Every year, in accordance with the CIArb UAE Branch Rules, one-third of elected committee members retire thus giving the opportunity for new members to join the committee. Since the last two years, to promote more transparency and independence in the election process, the committee elections have been conducted by an independent organisation.
In the last quarter of 2021, during Dubai Arbitration Week, we had the opportunity to meet in-person or virtually many of you, our members. A couple of weeks ago, we got the chance to connect again both in-person and virtually with a record number of attendees for a panel discussion on “How to get your first appointment as an arbitrator” which was the first of our “How to…” event series planned in collaboration with the Dubai International Arbitration Centre (DIAC). It was a successful exchange, of great value to our members aspiring to be arbitrators. If you were not able to attend, you can view the recording here. We have a host of interesting events and trainings planned for this year which you can check on our events page.
The hybrid events format – in-person and virtual, has proven to be hugely successful allowing us to reach out to not only our members here in Dubai but also in the different Emirates in the UAE, and everywhere in the world. Therefore, despite the lifting of restrictions and things starting to get back to normal, we decided to maintain both the hybrid format of many of our upcoming events. We are committed to catering for as many features of the new world such as the readjusted workweek, flexible working arrangements and ‘watch later’ options as much as feasible. In the same vein, to continue to deliver events of relevance and value to you, we would love to hear from you on what types of activities and topics you would like the Committee to organise and address in the future.
Alongside all the educational, professional, and social events, we also have an important yearly event coming up, the Election of Members of the CIArb UAE Branch Committee. Every year, in accordance with the CIArb UAE Branch Rules, one-third of elected committee members retire, thus giving the opportunity for new members to join the committee. Since the last two years, to promote more transparency and independence in the election process, the committee elections have been conducted by an independent organisation. As a result, more members took part in the elections leading to a more diverse committee consisting of a higher proportion of new committee members.
In this year’s election, we are looking forward to perpetuating this trend and welcoming more new, diverse and dynamic committee members as well as experienced members of the CIArb community. If you have held the desire or ambition to join the committee, now is your time to shine. For those who are yet to be convinced or have not yet considered it, here are some of the reasons and benefits to join the committee of a charitable organisation like the CIArb:
Leadership: Having the opportunity to practise your leadership skills by engaging in decision-making, initiating and leading the organisation’s and the Branch’s activities, challenging the status quo and implementing new ideas.
Experience: Getting to learn and grow from the experience of other committee members, and in turn teach and mentor others.
Influence: You get to have a say in the decisions of the committee and gear the branch and the organisation in a direction that you deem right as long as these align with the organisation’s goals and values.
Impact: Create impact by initiating and enabling positive change in the ADR sector and for CIArb members.
Rewarding: Providing support – from being of service to the Branch’s members by guiding/mentoring them on their CIArb pathway or ADR journey to giving them the opportunity to be a part of the Branch’s initiatives such as, as an author, speaker or interviewee. Also, being in a position to implement initiatives that bring benefit to others such as the mentorship programme.
Connection: Making new friends and meaningful professional relationships within the CIArb community and beyond, and growing an interdependent network of colleagues and mentors to discuss your professional plans and ambitions freely and safely, and also have exposure to more opportunities.
I hope this was enough to convince some of you to start preparing your manifesto to participate in the next elections. If you have any questions, please do not hesitate to reach out to me for a chat or any other committee member that you would feel comfortable to speak with. Whether or not you decide to stand in the elections, please at least use your vote to have your say in the representation of the Branch Committee and the future of your Branch.
Yalla! Watch out for the election notice, join us by standing in the elections, and when the time comes, please Vote!
Warmest regards,
Reshma Oogorah
Reshma Oogorah is a Fellow of the Chartered Institute of Arbitrators, the Public Relations Officer of the CIArb UAE Branch and General Editor of the Branch’s quarterly newsletter. She sits as Arbitrator and works as Legal Counsel through her independent legal practice, Niyom Legal. Reshma can be contacted on reshma@niyom.legal.
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
We take a look at some of our accomplishments and events from the last few months as well as events organised by other branches.
Accomplishments of CIArb UAE Branch
On 15 November 2021, as part of UAE Arbitration Week, the CIArb YMG held its Annual Conference themed “Arbitration in a Changing World”. The conference included two panel sessions (one in-person and one virtual), and two debates. The first panel considered how arbitration has changed in the last decade, which was followed by a debate on virtual hearings, and later, a panel on the future of arbitration and the Conference ended with a debate on online identity of practitioners. https://www.linkedin.com/posts/ciarb-young-members-group-uae-branch_ciarb-ymg-uae-branch-committee-activity-6831132234456547328-C4t8
On 17 November 2021, as part of UAE Arbitration Week, the CIArb UAE Branch held an event which brought together a number of excellent speakers including CIArb President Ann Ryan Robertson, Suzannah Fairbairn, Natalie Jensen, Nasser Ali Khasawneh, Amr Omran and Francis Hornyold-Strickland and our own local Chair Iryna Akulenka FCIArb. Our panelist debated whether the Construction Disputes are likely to remain mainstream in the view of the rising momentum in Technology, Sports and Maritime disputes. The lively debate was moderated by Zeina Obeid, who concluded the debate by taking votes on the subject from over 100 attendees – the result…construction disputes are still the strongest leader.
On 10 February 2022, the Branch in collaboration with DIAC, held its first in a series of “How to…” events planned for the course of this year. This first event, our distinguished speakers including Olena Voronovych, Maria Mazzawi (FCIArb), Victor Leginsky FCIArb CArb, Iryna Akulenka FCIArb and Zeina Obeid discussed
“How to Get Your First Appointment as an Arbitrator”. The event was moderated by CIArb Committee member Kasia Halliday who discussed with our speakers’ their personal experiences when it came to their own first-time appointments or appointing first-time arbitrators and tangible steps that could be taken by both, the first-time arbitrators and the appointing parties to improve the rate of first-time arbitrators’ appointments and, as a result to promote more diversity.
On 1 December 2021, the CIArb announced that it is the sole provider of Arbitration Referral Services to the Pubs Code Adjudicator (PCA). This will include full end-to-end management and administration of the arbitration service and recommending suitable CIArb-accredited arbitrators to the PCA for appointment in each eligible case under the terms of the Pubs Code. In addition, the CIArb will be working with the PCA to develop specialist Pubs Code training for arbitrators and others to ensure they are equipped with the knowledge required to handle PCA arbitrations. Read the full announcement here: https://ciarb.org/news/ciarb-awarded-contract-as-the-arbitration-referral-service-for-the-pubs-code-adjudicator-pca/
Accomplishments of other branches
The Third Annual New York Arbitration Week took place between 15-19 The Third Annual New York Arbitration Week took place between 15-19 November 2021. The New York International Arbitration Centre (NYIAC) and the New York Branch of the CIArb reported that the event’s trajectory of growth continued, boasting the highest ever attendance, the most speakers, the greatest number of panels, presentations and participating organizations, and the broadest array of financial sponsors to date. Read the full article here: https://ciarb.org/news/new-york-arbitration-week-2021-the-biggest-nyaw-yet/
Newsworthy events
On 13 December 2021, the Taiwan Chapter was honored to co-host a special evening talk on “Offshore Wind M&A”, which wrapped up a series of four talks deducted to green power in the latter half of 2021. The talk was organized into two parts based on the topics of M&A and competition law issues relevant to M&A transactions, with each topic presented by two keynote speakers. Read the full article here: https://ciarb.org/news/ciarb-taiwan-chapter-s-evening-talk-on-offshore-wind-ma/
We chat to Cathy Joshi, a Fellow of the Chartered Institute of Arbitrators.
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I am a Chartered Civil Engineer and Project Manager, and a Fellow of the CIArb. I have been working in Dubai for 24 years. I started my career as a civil engineer, moved on to become a project manager and I am now working in construction dispute resolution.
About ten years ago a close friend, who is a HR manager in oil and gas, mentioned that many women change careers in their 40’s, and that their second careers were often more successful than their first. This thought stuck with me and led me to the realization that I wanted to move into the field of construction dispute resolution. I went back to study construction law, and I am now a technical director for a leading global consultancy, HKA, that advises on risk mitigation and dispute resolution, providing expert, claims and advisory services. I act as an independent Expert for engineering and fit-out works. I am also involved in dispute resolution.
In my current role, I use my skills and experience gained from an extensive career in engineering, architecture, project management and contract formation and administration, coupled with my knowledge of design and construction processes from feasibility through to project completion.
Q. When and how did you get to this position?
A. I started my career as a civil engineer working on highway, drainage and small structures in England and the Isle of Man for Hyder/Acer Freeman Fox. One of the reasons I chose to be a civil engineer was that I wanted to work in other countries, so when an opportunity came up in 1994 to work on a project in Hong Kong, I was determined to grab it. Two weeks after my interview for the role, I had packed up and moved to Hong Kong to work on an immersed tube tunnel (ITT) which was part of the new airport project. In those days, a move was a lot harder as I communicated with my family by fax as there were few computers, no email and no mobile phones. After a year, I moved to the USA and worked on another ITT in Boston, as part for the Big Dig project.
I was offered another great opportunity by Hyder in 1997, to move to the UAE to work on the Emirates Towers. I arrived in Dubai in time for ground-breaking and spent the next 2.5 years on what was definitely the best project I ever worked on.
I moved into a project management role with Mace and for ten years worked on projects across Dubai, Abu Dhabi and Bahrain, predominantly on 5-star hotels.
After having two children and working on a more part time basis for a few years I decided to follow my instincts to move careers. I graduated from Robert Gordon University (RGU) in 2015 with a LLM Construction Law and Arbitration (Distinction). Towards the end of the course, I realised I needed experience. So, I approached Peter Evans Partnership, where I worked on the claim preparation for a major highway and bridges project. I later moved to Probyn Miers, a UK consultancy carrying out Forensic Analysis and International Dispute Resolution and Avoidance in Construction. I worked with Chris Miers on several disputes in the Middle East, benefiting from his guidance and mentorship.
I became Probyn Miers’ UAE based representative and worked on several large disputes in the Middle East region including a hospital and a metro project.
Probyn Miers merged with HKA in 2021 and I am happy to be part of this leading global consultancy.
It became clear quite quickly that my friend had been right, and the career move in my 40’s was exactly what I had needed.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. I joined CIArb when I was studying Construction Law and Arbitration at RGU. The CIArb has supported my career development and provided me with access to knowledge and training, which were instrumental in the successful completion of my degree. I am also a Fellow of the CIArb, and this has been acknowledged by clients as an indicator of competence and professionalism.
I attend CIArb meetings as often as I can and find these useful to connect with other professionals in the arbitration field. All of the members I have met have been happy to share their experiences and offer advice, and I am now also advising younger and newer members. Often when I get asked for advice, it is not strictly related to work, but of a much more general nature, such as how to balance children and work. The CIArb allows me to connect with similar women facing similar challenges and this is a great benefit to us in our move towards equality.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. My biggest achievement is to have completed a degree in my forties. It was not easy to go back to studying and definitely not easy to start studying law for the first time. I was delighted to get a Distinction for my LLM Construction Law and Arbitration and to become a Fellow of the CIArb shortly after.
CIArb helped me transition from being an engineer and PM to being an expert. The advice I received helped me move into my current role with confidence.
Q. What are your aspirations for the future?
A. I aspire to continue working in the Construction Arbitration field, and to see, and to actively support increasing numbers of women in the industry.
I have continued to work as an Engineer and now as an Expert whilst having a family, which can be challenging at times and can require a level of flexibility of me and my employers.
I am passionate about promoting equality and diversity in the workplace and other areas like sport. HKA and I are currently working with a local school, Dubai College, to support future women in Engineering as well as promoting their U19 Girls rugby team which is going on the region’s first ever girls’ rugby tour to the UK. This will allow me and the team to work with the students and support them in achieving their education and career goals.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. My advice would be to utilise organizations like the CIArb to build your knowledge and contacts. Attend every seminar you can, both at the CIArb and the regular ones run by law firms to benefit from the knowledge the experienced practitioners can pass on.
It is important to pursue your career proactively. I would not have had the opportunities I have had if I hadn’t approached people and ask to be considered for positions, or for help getting experience. I have taken risks, for example by moving internationally to places where I knew no one, and by going back to study as a mature student, but these risks have paid off.
Cathy Joshi is a Fellow of the Chartered Institute of Arbitrators. She is a Technical Director and an Expert at HKA and may be contacted on CathyJoshi@hka.com.
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
Kevin Kelly is a Member of the Chartered Institute of Arbitrators.
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I am currently a Director at ‘Boultwood + Associates’ in Dubai. I have been appointed as quantum expert, where I submit my own endorsed expert report(s) to an adjudication panel. I also act as the expert alternate and commission lead (second in command to the expert) on numerous large-scale arbitrations.
My journey to get to this position is a little unconventional which involved mainly hard work, a ‘say yes attitude’ but also an element of luck. I graduated from The Nottingham Trent University in 2008 with a degree in ‘Quantity Surveying & Commercial Cost Management’. Since graduating I worked as a traditional client-side Quantity Surveyor (“QS”) in London, Saudi Arabia and Sydney before transferring with Turner & Townsend from Sydney to Dubai in April 2016.
Once I arrived in Dubai I was asked pretty much straight away if I was willing to assist on a major infrastructure arbitration within the region and move into the quantum expert sector. I did not have any experience of working in arbitration at that time and frankly did not know what to expect. However, I agreed to move into the quantum expert world, and it is one of the best decisions I have made in my career. I haven’t looked back since.
Q. When and how did you get to this position?
A. One of the major infrastructure arbitrations I worked on involved assessment of the disputed variation account. Using my experience as a quantity surveyor, I took a lead role in managing a team of approximately 8 QS’s in developing our position on a significant number of variations that were in dispute. By showing initiative, I was given the opportunity to get regular facetime with the quantum expert John Boultwood, in order to explain our assessments of the variations for either his endorsement or edit, and eventual incorporation into his expert report. This enabled me to gain the trust of the expert and to develop an excellent working rapport with the other team leaders throughout the arbitration process whereby, I also assisted on the valuation of the prolongation claim.
After accepting this role and assisting on this arbitration (without prior experience) I was formally asked to join John Boultwood’s quantum expert team.
Since my work on this first arbitration, I have become the expert alternate to John Boultwood on other major international arbitrations. One other significant arbitration I worked on was a major international oil and gas dispute. Here, I took leadership of the entire quantum process and managed a team of 6 support staff in making assessments on suspension/termination claims, disruption claims and variations. My role involved travel to London where our instructing lawyers were based and to Amsterdam where the client was based. Ultimately, I became the client liaison and was trusted by the client, instructed lawyers and ultimately the quantum expert.
I have continued to develop in my career since then and gained vital experience on major arbitrations globally. I personally believe that my passion for the job has propelled me to where I am today as well as my constant desire to learn, understand more and to say yes to any opportunity that arises.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. My career is very closely linked with the CIArb, particularly as I work in dispute resolution and predominantly in large scale arbitrations. I often refer to the CIArb for guidance and support regarding any queries I have with governing procedures. I find the CIArb’s regular communications relevant to my day-to-day work and very helpful. I became a chartered member of the CIArb after completion of my first year of my LLM in Construction Law, Arbitration and Adjudication in 2017.
The CIArb have ultimately enabled me to develop my learning and have provided an environment where I feel I am part of a like-minded community of peers within the industry.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. I have two stand out achievements in my quantum expert career so far. These are achieving my MCIArb as well as my LLM and being appointed as the quantum expert for the first time.
Being a Member of the CIArb assisted me in developing my network within the industry, which I credit in supporting me getting to where I am today.
Being appointed as the quantum expert for the first time was an exceptional milestone for me. It showed me that all the hard work had paid off and that a prestigious client has recognised my expertise in the field.
Q. What are your aspirations for the future?
A. My aspirations for the future in the short term are to continue to learn how best to accomplish what is required of me in my current role. i.e., to ensure I always work to the best of my ability and to the standards expected of me. I also wish to continue to be appointed as the expert and to soon have testifying experience. Long term, I wish to become a globally renowned quantum expert and to work on complex, large scale and interesting projects.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. My advice would be to work hard and to ensure that you are enjoying what you are doing day to day. In my opinion a fundamental way to ensure career progression to is to be doing something you enjoy. Further, always ask questions, even if you believe that the question is silly.
I did not have any experience of working in arbitration. However, once presented with the opportunity I embraced it and through hard work and application got to where I am today.
Kevin Kelly is a Member of the Chartered Institute of Arbitrators. He is a Director at ‘Boultwood + Associates’ and may be contacted on kevin.kelly@boultwoodassociates.com
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
We talk to Yassmine Houmane, a Member of the Chartered Institute of Arbitrators.
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I am a senior associate cost manager at the Expo 2020 Dubai. My work involves managing post-execution stage contractual and commercial issues including certifying payments, reviewing contractor/consultants’ invoices along with supporting documents and ensuring that requests for payment comply with the contract terms and conditions. I am also involved in change management, and contract negotiations, as well as review of drafted contracts during the pre-execution stage. Expo 2020 Dubai is the first Expo in the MENASA region, and I feel that being a part of it, is being part of history.
Q. When and how did you get to this position?
A. After completing my civil engineering degree in France, I returned to the UAE, where I joined Wood Plc., an oil and gas consultancy, as a junior structural civil engineer. In November 2015, Expo organized a youth connect event, which made me very interested in being part of the Expo. Therefore, as soon as Expo launched the first apprenticeship program, I did not hesitate in applying. The recruitment process was challenging and included an all-day assessment and several interviews. It was a very selective process, but luckily, I was part of the “1% chosen ones” – as the interviewers referred to us later and I was offered a placement. I resigned from my position with Wood Plc to join the nine months apprenticeship program, not knowing what would happen afterwards. Everyone advised me not to take this risk, but I always believed that it would be worth stepping outside of my comfort zone if it enabled me to broaden my experience. During the program I met incredible people and developed new skills which helped me evolve both professionally and personally. I also became interested in commercial management, and I was delighted that at the end of the program, I was offered a full-time position at the Expo as an associate commercial manager. To strengthen my knowledge in this field, in 2017 I decided to undertake studies in the Master of Science in Commercial Management and Quantity Surveying at Heriot-Watt University, which I successfully completed in 2019.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. I joined CIArb as a member earlier this year after successfully completing the Mediation training and assessment, following which I became an accredited mediator. Spinoza once said, “no matter how thin you slice it, there will always be too sides” We see things differently depending on our perspective, different point of views, different interpretations, hence, disputes arise. In order to solve disputes, it is important to first of all understand the other party’s stand and what pushed them to see the situation differently.
The mediator skills are essential to tackle and successfully manage the disputes I face in my professional life. The CIArb mediation course equipped me with the required tools and gave me an advantage in my current role when negotiating with contractors and consultants at various stages of the projects. I am interested in pursuing a career in dispute resolution in the coming years and I believe that completing the CIArb’s mediation course has provided me with the opportunities to develop my career in that direction.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. Being selected as part of only 1% of all applicants to join the Expo apprenticeship program and later being offered a full-time position as part of the Expo Commercial Management team is definitely one of my greatest professional achievements.
Being part of the Expo has recently provided me with an opportunity to take part in the Government Games as part of the Expo 2020 Dubai female team where I was honored to be selected as the captain of the team. The games included a series of physical and mental challenges. It was a very challenging experience, and I am proud that my team was part of the top 10.
One other achievement to mention would be being a speaker at an International Scientific and Practical Conference titled “Mediation and Law: Regulation and Judicial Practice”, organized by the Kazakhstan government. I was approached to speak about mediation in the UAE and it was my first invitation to speak on this topic. I have been selected by the organizers based on my CIArb status as an accredited mediator in UAE. My speech was on the subject of recent changes in the mediation Law in UAE, specifically the Federal Law No. 6/2021.
Q. What are your aspirations for the future?
A. My aspiration for the future is to put into practice the knowledge I gained from the CIArb’s Mediation Course and gain practical experience utilising amicable dispute resolution methods. I am also planning to study for an LLM in dispute resolution, as I believe that obtaining a legal qualification will provide me with greater opportunities in the future, whether I decide to pursue a career in commercial management or dispute resolution.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. Believe in it, plan for it, and go for it. Take an action now, don’t procrastinate. The biggest risk in life is not taking the risk. There is no use of being afraid of risks. Taking risks widens your comfort zone. Not taking risks limits your comforts zone, your growth and career opportunities. It’s all in your hands, so go for whatever you are passionate about or believe in.
Yassmine Houmane is a Member of the Chartered Institute of Arbitrators. She works as Senior Associate Cost Manager at Expo 2020 Dubaiand may be contacted on yassmine.houmane@icloud.com.
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
A quick chat with Shani-Louise Foad, MCIArb, an accredited International Arbitrator and Mediator, part of the CIArb UAE Branch Committee since 2018.
Q. Tell us about you and how you landed on the CIArb UAE Branch Committee?
A. After fueling my interest in the field of dispute resolution in 2016 by completing the CIArb International Arbitration (2017) certification and then the CIArb Mediation (2018) course, I began to learn about the work of the CIArb and was keen to help support the institute in the region. Since I joined the committee in 2018 my primary role has been to lead the CIArb UAE Branch’s mediation courses.
Q. How has your experience been so far and what have been your contributions since joining?
A. Enlightening. Since joining the committee I have gained a greater understanding of how the CIArb operates, continuously get to witness the strong bond between the members of the committee and the extensive time and effort the members dedicate to keeping the branch alive, evolving and expanding. Also, along the way, I have met a wide range of people from those at the top of their game to those just starting out. One must not forget, and after seeing them in action, unable to forget, being exposed to some extremely talented dispute resolution singers and musicians at the annual Arbitration Week Law of Rock event. My main contribution to the committee has been to set-up and oversee the mediation courses the UAE Branch delivers each year. Mediation is becoming a more prominent arm of dispute resolution in the region and is noticeably receiving a growing level of interest.
Q. What are you seeking to achieve during your time on the Committee?
A. I am looking to continue to raise the profile of the CIArb, its activities and to encourage disputing parties to consider mediation as their first port of call to resolve disagreements.
Q. What does the CIArb strategy 2021-2023 represent for you?
A. The CIArb Strategy for 2021 and 2023 sends out a clear message: it wants to be part of ensuring dispute resolution processes are fair and robust for the parties to resolve disputes in a time/cost effective manner. It is also sending out a clear message that this area has not been as inclusive as it could have been in the past and is now looking to change that by encouraging under-represented demographic groups to come forward and participate in CIArb activities and training.
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 in contact. We are always looking for new people, from different backgrounds and sectors to bring along fresh ideas.
Shani-Louise Foad is a Member of the Chartered Institute of Arbitrators and a committee member of the CIArb UAE Branch. She may be contacted on shanifoad@hotmail.com
Michael Lawrence FCIArb takes us through some of the latest technologies influencing arbitration and speculates as to where AI might take arbitration one day in the not-too-distant future. Will arbitrators ever be replaced by robots?
by Michael John Lawrence FCIArb
One of the most interesting events for me at Dubai Arbitration Week in November 2021 was the event sponsored by the Scottish Arbitration Centre, “The Impact of Emerging Technologies on International Arbitration: Cybersecurity, Blockchain and Smart Contracts, and Artificial Intelligence”. As part of the arbitration community in the UAE one would be wise to keep abreast of the emerging technology landscape as applied to arbitration. The UAE has a clear strategy to be at the forefront of the application of emerging technologies, including to the Law, as the recent announcement of the DIFC Courts to establish a specialised court for the digital economy testifies.
Professor Richard Susskind in the 2020 CIArb Alexander Lecture commenced his talk reminding us that ultimately it is the users who will determine the future of arbitration and to illustrate this he referred to the slide of a Black and Decker drill shown to salesmen on their first day of induction. “Is this what we sell?” “of course,” they reply. “No, it’s this!” and they are shown the hole!
Online Dispute Resolution (ODR) has been with us as long as the internet, with the first “amateur stage” uses in the late 1990’s. It was posited as “The Future of Justice” back in 2015, so if we have anything to thank COVID-19 for, it’s that the future is now here and has been accelerated due to the pandemic. However, as Susskind would point out, this is Automation not Transformation, whereby we have merely applied updated technology to the existing process.
Decentralization
A more transformative process is underway with the application of Decentralized Justice. This is particularly applied to disputes in the technology sector where as one of the pioneers of ODR, Ethan Katsh, has said, “the power of technology to resolve disputes is exceeded by the power of technology to generate disputes”. Many disputes are low value, transnational and relate to e-commerce transactions, therefore a fast and affordable method is needed to resolve disputes. Decentralized Justice is described as the convergence of ODR, blockchain and international arbitration. Whilst ODR and international arbitration need no introduction, what is blockchain and why is it useful as part of an ADR process?
Nick Paumgarten neatly described what blockchain is in his New Yorker article of 2018:
“Broadly speaking, a blockchain is an evolving record of all transactions that is maintained, simultaneously and in common, by every computer in the network of that blockchain, be it Ethereum, Bitcoin, or Monero. Think, as some have suggested, of a dusty leather-bound ledger in a Dickensian counting house, a record of every transaction relevant to that practice. Except that every accountant in London, and in Calcutta, has the same ledger, and when one adds a line to his own, the addition appears in all of them. Once a transaction is affirmed, it will—theoretically, anyway—be in the ledger forever, unalterable and unerasable.”
So blockchain technology allows for the synchronisation of databases in a secure manner that is immutable and transparent, through computer technology without the intervention of third party in the middle as an agent. Essentially the trusted third party, for example the bank in a financial transaction, is replaced by trust in technology to carry out the transaction. The second wave of development of blockchain technology, from its original use to facilitate cryptocurrency transactions, was when it was applied to business cases outside this sphere. This is facilitated by the application of so-called ‘smart contracts’ which allow for self-executing actions to take place dependant on certain conditions, such as ‘if’ this ‘do’ that.
Decentralized Justice platforms are a form of digital court based on blockchain technology. The procedure is governed by smart contracts which settle disputes through crowdsourced jurors. The jurors apply to the platform by purchasing an amount of cryptocurrency. If they are selected to rule on a case, they are sent the evidence and asked to vote on the outcome. If they vote with the crowd, they are paid more cryptocurrency, if they vote against, they must pay some. The main platforms using this technology are currently Kleros and Aragon. In both cases ‘jurors’ are not vetted or required to present any qualification. Jur is another platform which seems closer to ODR arbitration but at the moment the platform is still in development. Whether these platforms succeed beyond the management of disputes related to e-commerce relying on blockchain technology itself, remains to be seen.
Many would argue that such platforms are not arbitration and do not even provide real justice but as was commented at the Scottish Arbitration event, whilst at present ‘the wisdom of the crowd’ appears an anathema to real justice, for the ever-increasing younger generation the wisdom of the crowd is perhaps all that matters.
Artificial Intelligence – Assisting the Process
Jeff Hawkins in his brilliant book“A Thousand Brains” explains the limitations of current AI technology. As a neuroscientist and computer engineer (the inventor of the Palm Pilot if you are old enough to remember this!) he is trying to discover how human intelligence works and apply this to AI. He explains that currently AI works by looking for patterns within data and then making predictions based on the patterns it discovers. AI is therefore narrow as to what it can currently achieve and in Hawkins’ view will never achieve human like intelligence using the present ‘Neural network’ methods. AI does not work in the same way that human intelligence does – at least not yet.
This however is not to dismiss the power and importance of AI as it exists today. In 1997 IBM’s Deep Blue supercomputer took on and beat the world chess champion Garry Kasparov and this was followed by the AI-powered computer Watson winning the TV game show Jeopardy against champion players. Then by 2016 Google’s Deep Mind beat the World Champion in the game Go by four games to one. There are an astonishing 10,170 possible board configurations for the Chinese board game thought to have originated over 3,000 years ago. AI therefore is powerful and will continue to be a part of the arbitration process over the coming years. However, in the short term at least, this will be to assist the arbitration process and participants.
Eidenmüller and Varesis classified the ways that AI assists arbitration into three categories. The first of these is Tools for Case management. The authors point to tools which are in fact of use to any professional to assist in the planning and scheduling of work, for case management. The second category is probably of as much use to counsel as the tribunal, and that is to gather facts and analysis from the vast amount of data in evidence and submissions. Such uses are now mainstream in e-discovery. The authors also refer to AI transcription services within this second category.
Finally, they refer to tools for decision making. Again, these tools are perhaps of more use to counsel and their clients. Decision analysis and prediction of outcomes is particularly useful where a large data set of information is available, which of course is difficult for awards, given their confidential nature. The technique has however been successful in predicting outcomes of certain cases or for certain judges, where judgments are publicly available. A further growing use is for the selection of arbitrators themselves. Arbitrator Intelligence seeks to provide such a service through feedback questionnaires which gather key information whilst maintaining the confidentiality of the parties.
Artificial General Intelligence – The Robot Arbitrator
Jeff Hawkins has studied how the neocortex works as the “organ of intelligence” in the human brain. He has concluded that this portion of the brain works by creating models of the real world, in fact thousands of models. His theory is that it does this for all activities including high level thinking. These models are formed by our life and learning experiences. If this can be recreated in a machine, we will achieve human like Artificial General Intelligence (AGI). At that stage the Robot Arbitrator will be there. A number of objections are put forward to us ever reaching this goal by Professor Max Scherer and others.
The confidential nature of awards means that data is not available to “train” the AI. This is a weakness of current AI techniques, but our AGI arbitrator will be “taught” arbitration, law etc. and consume scholarly articles the way a human does, only probably considerably quicker and with more information.
AI can be biased based on the information used to form the basis of its decision making. This a concern with present AI which relies on the data it consumes. AGI will however learn from principals and examples the way we do. There is of course a risk that bias could be learned unconsciously but this would be no worse than with human learning. However, in addition, human behaviour is heavily influenced by ‘old brain’ functions which developed as a survival mechanism. This brain region is also responsible for conscious bias but with AGI our Robot Arbitrator would be free from this. So, in principle would be less biased than a human. There is no need, and in fact it is quite difficult, to programme AGI to include ‘old brain’ desires and prejudices.
With AI we will not be able to understand the reasons for an award. A reasoned award with current AI technology would not be possible. The algorithm is not capable of explaining why or how it arrives at a decision. With AGI however this is no longer a concern. The AGI arbitrator would learn how to write an award, including how to provide reasons for the award, the same way that we do.
AI cannot read human emotions with human witness testimony. This field is in fact already well advanced. The field of Emotion AI or Affective Computing dates back to 1995 with business uses such as Affectiva already in use.
Users will not accept an award without human involvement. This is probably currently true but as AGI seeps into all fields of life I suspect attitudes will change. Consider self-driving cars. Once there is clear evidence and experience that there are less accidents with an AI driver than with a human one it, will humans be legally allowed to drive?
Arbitration Law and Rules do not always permit an award without human involvement. Again, this will change as AGI becomes a part of modern life. There are laws for a multiple of modern technologies such as data management, cryptocurrencies, and email transmission. As society changes, so do attitudes and laws.
Jeff Hawkins predicts that AGI on human principals is probably 20 to 30 years away, but I believe that it will one day be possible and perhaps even normal for an AGI entity to act as an arbitrator.
Michael Lawrence is a Fellow of the Chartered Institute of Arbitrators. He is a Director and Co-founder of the Construction Consultancy Insite where he assists parties with contracts, claims and disputes related to property and construction matters. Michael is also a founder of the construction blockchain technology platform Bloqwork and can be contacted on michael.lawrence@insite-pm.com and michael.lawrence@bloqwork.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
Soraya Corm-Bakhos MCIArb looks at the issue of recoverability of parties’ costs in DIAC arbitrations.
by Soraya Corm-Bakhos MCIArb
Since a judgment of the Dubai Court of Cassation in 2013, the recoverability of parties’ costs is a salient and persistent issue of DIAC arbitrations. This article looks at the relevant provisions of the 2007 DIAC Rules and the Federal Arbitration Law and the jurisprudence of the UAE courts.
The legal and other costs of resolving disputes by arbitration are often substantial. For parties, the ability to recover legal and other costs plays an important role in deciding whether to arbitrate or to settle. The costs of an arbitration are divided in two main categories: (i) the “arbitration costs”, which include the tribunal’s fees and expenses and the administrative charges of any arbitration institution; and (ii) the “party’s costs”, which include legal or counsel fees and other expenses such as e.g. costs of party-appointed experts, witnesses or translation costs.
An arbitral tribunal’s power to decide and allocate parties’ costs is derived from the relevant lex arbitri, the arbitration agreement and the applicable institutional rules. Most legal systems have arbitration laws that either expressly confer power to the arbitral tribunal to decide on costs, including parties’ costs, or consider that this is an inherent power included in the tribunal’s authority and mission to resolve the parties’ dispute (which cannot be completed without a decision on costs). Most arbitration institutional rules expressly empower the arbitrators to award costs, including parties’ costs1.
Since the issuance of a judgment of the Dubai Court of Cassation back in 2013 in Case 282/2012, the recoverability of parties’ costs in arbitrations conducted under the 2007 Dubai International Arbitration Centre (DIAC) Rules is a salient and persistent issue of DIAC arbitrations. Before analysing the decisions of the UAE local courts, we will consider the relevant provisions of the DIAC Rules and the UAE Federal Law No. 6 of 2018 on Arbitration (FAL).
Relevant provisions of the DIAC Rules
Article 37.10 of the DIAC Rules provides: “The Arbitration Costs and Fees, in accordance with Appendix – Cost of Arbitration, and their apportionment between the parties shall be fixed in the award or other order by which the arbitral proceedings are terminated. An award may be rendered solely for costs”.
Article 4 of the Appendix Costs of Arbitration (Appendix) provides:
4.1The Tribunal may make decisions on costs at any time during the proceedings.
4.2The final Award shall fix the costs of the arbitration and decide which of the parties shall bear them and in what proportion they shall be borne by the parties.
It is accepted that by reference to these provisions, a tribunal sitting under the DIAC Rules is empowered to rule on the “costs of the arbitration”.
Article 2 of the Appendix provides : “The costs of the arbitration shall include the Centre’s administrative Fees for the claim and any counterclaim and the fees and expenses of the Tribunal fixed by the Centre in accordance with the Table of Fees and Costs in force at the time of the commencement of the arbitration, and shall include any expenses incurred by the Tribunal, as well as the fees and expenses of any experts appointed by the Tribunal”.
These provisions do not expressly include legal or counsel fees within the definition of “costs of the arbitration”.
Relevant provisions of the FAL
Similarly, Article 46 of the FAL provides in relevant parts as follows:
Unless otherwise agreed by the Parties, the Arbitral Tribunal shall assess the costs of the Arbitration including: the fees and expenses incurred by any member in the Arbitral Tribunal in the exercise of his duties, and the costs of appointment of experts by the Arbitral Tribunal.
The Arbitral Tribunal may order that all or some of the costs set out in paragraph 1 of this Article be borne by one of the parties […].
These provisions do not expressly include legal or counsel fees within the definition of “costs of the arbitration”.2
Both the DIAC Rules and the FAL are therefore silent as to the arbitral tribunal’s power to award parties’ costs.
The local courts’ rulings
In a judgment dated 3 January 2013 in Case 282/2012, the Dubai Court of Cassation found against the recoverability of legal fees in arbitrations under the DIAC Rules, giving a narrow interpretation of Article 37.10 of the DIAC Rules and of the Appendix. In that case, the Court set aside the award of counsel fees and ruled that the foregoing provisions of the DIAC Rules “do not include the legal expenses paid by the parties to their attorneys representing them in the arbitration or whoever prepares the claim […] The DIAC Rules do not grant arbitrators the power to award counsel fees”. This ruling has been rightfully criticised as the Court ignored the verb “include” in Article 2.1 of the Appendix, which in the English language is given a non-exclusive meaning and is commonly used to introduce a non-exhaustive list of examples. In other words, the DIAC administrative costs and the tribunal’s fees should be no more than two non-exhaustive examples of the type of arbitration costs that a tribunal is empowered to award and that may be recovered under the DIAC Rules.3
Parties have sought to overcome this restriction in the DIAC Rules by expressly agreeing to empower the tribunal to award legal fees in the terms of reference, which are customary (although not mandatory) under the DIAC Rules. Terms of reference are often executed by the parties’ legal representatives rather than the parties themselves. It is standard (and best) practice for powers of attorneys to include a specific and express power to sign terms of reference.
In a recent judgment dated 29 November 2019 in case 427/2018, the Dubai Court of Cassation confirmed (in line with previous decisions) that the DIAC Rules do not provide the tribunal with authority to award lawyer’s fees. However, the Court of Cassation upheld a decision by the Court of Appeal, which found that terms of reference that provides for the tribunal’s authority to award “legal costs” did not mean that the parties had provided the tribunal with the authority to award lawyer’s fees; in other words, quite surprisingly, the Dubai Court of Cassation took the view that the term “legal costs” does not clearly authorise the tribunal to award lawyer’s fees.
In a more recent judgment dated 5 April 2020 in case 990/2019, the Dubai Court of Cassation took an even more restrictive view.4 In this case, the parties’ legal representatives signed terms of reference pursuant to which the parties authorised a DIAC tribunal to determine and award fees and costs, including legal costs. The tribunal issued a final award ordering the claimant (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 arguing that its legal representatives were not themselves authorised to agree to grant the tribunal authority to award legal costs. The Court of Appeal agreed and partially annulled the award insofar as it related to legal costs. Upon further appeal by the respondent, the Court of Cassation upheld the lower court’s decision and confirmed that when a 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 a tribunal power to award legal costs.
Conclusion
To mitigate the risk of annulment of an award of legal or counsel fees, it is essential for parties involved in DIAC arbitrations to:
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.
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 or LCIA Rules, which expressly provide for the recovery of legal costs.
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
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
The old Article 218 of the UAE Civil Procedure Code in effect prior to the entry into force of the FAL provided in similar terms: “The arbitrators shall estimate their fees and arbitration expenses and may decide that such amount, in whole or in part, be borne by the party against whom the award was issued”.
A joke and some information… what we like to call Jokamation
by Mohieeldin Elbana MCIArb
1) How do you get a lawyer out of a tree? Cut the rope!
2) Is arbitration a new dispute resolution mechanism?
No, arbitration is an old means of dispute resolution. The roots of arbitration go back to ancient times. Below are some of the old examples where arbitration was used.
1. King Solomon (peace be upon him) appears to be the first arbitrator when he settled the issue between two women who claimed to be the mother of a baby at the time. You may refer to:
the Old Testament in I Kings, chapter 3, verses 16-28; and
Bukhari, M., Sahih Bukhari’s, 4, (55:637) – Hadeeth by Prophet Mohamed (Peace be upon him).
2. The Bible refers to an arbitration between Jacob and Laban wherein they both resorted to arbitration and agreed that a third party should settle their differences (The book of Genesis, chapter 31, verses 36 and 37)
3. Before Islam, Arabs used to resolve their disputes through arbitration including tribal disputes and individual disputes.
4. A famous case of arbitration in the Islamic era arose between Ali ibn Abi Talib and Muaawiyah ibn Abi Sufyan in relation to ending the battle of Siffeen. Both parties had agreed to arbitration. An arbitration agreement was signed on the 13th of Ramadan, 37 A.H., to allow each party to appoint an arbitrator and provided that the award would be issued within 6 months.
5. The Holy Qura’an makes reference to another story about how a dispute was resolved by Solomon and his father (peace be upon them) in relation to damage to crops caused by sheep of another person (The Holy Qura’an, Surat Al-Anbyaa (i.e. the Prophets) Aya 78)). In fact, the holy Quran supports arbitration in certain matters including divorce/ separation cases (The Holy Qura’an, Surat Al- Nisaa (i.e. the Women) Aya 35).
6. In the Greek era, there were several arbitration alike cases reported. For instance, arbitration was used by Philip II, the father of Alexander the Great, for settlement of territorial disputes in Greece as far back as 337 B.C. Further, a dispute arose between Athens and Megara, for the possession of the island of Salamis. Such dispute was resolved by five Spartan judges around 600 B.C.
7. In the Chinese civilization, there are records that refer to arbitration since 2100 BC.
8. In the Ancient Egypt, records show usage of arbitration in Egypt around 2500 BC.
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.
Below is a list of forthcoming courses and events. If you are interested in any of the events please contact the email addresses provided.
Education and Training
01 Apr 2022 Module 2 in International Arbitration – Law of Obligations Dates to be announced
22 Apr 2022 (TBC) Introduction to International Arbitration (format to be confirmed) Dates to be announced
Sep / Oct 2022 Introduction to International Arbitration in Arabic (format to be confirmed) Dates to be announced
2022 Module 1 in International Arbitration – Law Practice and Procedure (format to be confirmed) Dates to be announced
2022 Accelerated Route to Membership International Arbitration (format to be confirmed) (format to be confirmed) Dates to be announced
2022 Accelerated Route to Fellowship International Arbitration (format to be confirmed) (format to be confirmed) Dates to be announced
Social and other events
March 2022 Event in collaboration with Tahkeem
17 March 2022 (TBC) Social Mixer Applicable Law on Construction Dispute
March 2022 Webinar in collaboration with the CIArb French Chapter on “Keeping your disputes in check: from dispute avoidance to affordable dispute resolution.”
April 2022 Webinar in collaboration with the CIArb Qatar Branch on mediation
April 2022 Iftar Dinner
May 2022 Panel discussion on “How to get your first appointment as Tribunal Secretary”, in collaboration with Dubai International Arbitration Centre
May 2022 Event in collaboration with ADGM on Legal Techn
CIArb UAE Branch News 