Leadership message from Sadaff Habib, a member of the CIArb UAE Branch Committee.
by Sadaff Habib, a member of the CIArb UAE Branch Committee.
As a member of the CIArb UAE Branch, I am delighted to write the Leadership Message for the fourth edition of our newsletter.
Last year ended on a high note with the launch of our first ever mentoring program. The CIArb offers training modules for the pathway to Fellowship in arbitration and to mediation. To supplement this, we decided to start a mentoring program so that more experienced practitioners can impart their wisdom to those seeking to establish and grow themselves.
Most would attest to benefitting from some sort of mentoring relationship in their professional and even personal life. Mentors are like lighthouses guiding us with their lamp of knowledge and experience. Personally, I am immensely grateful to all my professional and personal lighthouses. There are a host of benefits to mentoring: it encourages and empowers personal growth and development in mentees, helps to identify and (hopefully) completes gaps in knowledge, increases self confidence and for the mentor it builds on coaching and mentoring skills.
Our mentoring program is structured to run the course of one year. Each group is given the liberty to decide how it wishes to structure the relationship depending on the needs of each group.
We initially planned to have four mentoring groups but the overwhelming response that we received led us to building 5 mentoring groups with four mentees, a facilitator and a mentor in each group.
For this mentoring cycle, some groups kicked off by discussing various practice notes on arbitration. Others decided to practically navigate the arbitration process by examining the role of the arbitrator at each stage of an arbitration.
Ultimately, the success of the process is down to its participants and particularly the mentees. I am excited to say that during this mentoring cycle the mentees have been exceptionally enthusiastic. There are plans in the pipeline initiated by one of the mentoring groups to run a moot arbitration to give participants a flavor of a ‘real life’ arbitration.
It’s definitely not all work and no play. We recently gathered to share an iftar during Ramadan. It was fantastic for everyone to meet in person. It was interesting to learn the backgrounds of the different individuals and their experience with the process so far. The idea is to have many more of these social events.
It is very easy to get caught up in the day to day and to loose sight of the big picture and the reason as to why we do what we do. My message to those that signed up to the mentoring program is to keep the momentum going, the more time you invest in the process and the more open you are to the process the more that you will get out of it. For those who may be stuck in a rut, reach out. Sometimes it helps to talk to someone more experienced to get a change in perspective. Last but not least, bring enjoyment into what you do and stop taking yourself too seriously. That first appointment as arbitrator or mediator or expert witness will come, it is only a matter of time.
As my time with CIArb UAE Branch Committee comes to an end. I am grateful that I can look back to fond memories of the mentoring program and to the enthusiasm of the participants, their contagious energy and drive to do better. I can only see this program growing from height to height and I am excited for what lies ahead as it paves the way for a new genre of neutrals.
Thank you
Sadaff Habib is a Member of the Chartered Institute of Arbitrators and Committee Member of the CIArb UAE Branch. She sits as Arbitrator and is an Associate with Beale & Company Solicitors LLP. Sadaff can be contacted on S.Habib@beale-law.com
Editorial May 2022: Events in Partnership. Special Focus on the Mentoring Programme and Invitation to vote for your new Committee Members on the CIArb UAE Branch, By Reshma Oogorah, FCIArb.
ByReshma Oogorah, FCIArb
We, at the CIArb UAE Branch have had a busy three months since February 2022, with events focused on the Branch’s partnerships with other branches of the CIArb and other organisations locally and around the world. We have partnered amongst others with the CIArb French chapter, the CIArb Qatar Branch and the Dubai International Arbitration Centre (“DIAC”) with events organised both in-person and in online formats. In doing so, we hope to widen the reach of our Branch and of our members and connect them across geographies and with other ADR-related organisations. We invite you to continue to actively participate and share any ideas you may have to collaborate with us in continuing to build on these initiatives. Find out more about events planned in our Announcements page.
In this Edition of the newsletter, we have a special feature on the Branch’s Mentoring Programme with contributions from some of the participants. Last year our Mentoring programme was launched under the banner “Each One, Teach One”, led by Sadaff Habib, MCIArb and Nebojsa Pavlovic, FCIArb. In her interview Aarta Karimi, MCIArb, one of the Mentors shares her views and experience with us, supported by testimonials from Facilitator, Kate Blotskaya, MCIArb, Mentee Austen Smith, FCIArb and a few words form Nebojsa who had a key role to play in the success of the initiative. There is also a Leadership Message from Sadaff, whose dedicated efforts led to the fulfilment of the initiative. As we start preparing for the next mentoring cycle, even though we have not formally started recruiting, we are accepting expressions of interests, from mentors, mentees and facilitators.
In the last edition, I shared my thoughts and encouraged participation in the CIArb UAE Branch Committee elections. I am excited to see that we have more participants in the elections than we ever had. We have now reached the voting phase. So, please use your vote, before the deadline of 20 May 2022, to elect the five new members whom you would like to represent you on the Committee. For enquiries, please reach out to the independent elections team UK Engage on ciarbuae@uk-engage.org
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.
On 5 April 2022, we held the first-ever joint event between Qatar and the UAE Branches entitled “Mediation: Some Topical Considerations” which took place via Zoom. The panelists, Robert Sliwinski FCIArb, Huw Davies, and Isabel Phillips MCIArb, talked about the new laws on Mediation for the Settlement of Civil and Commercial Disputes – the “Qatar Law No. 20/2021” which was issued last November 4, 2021, and the “UAE Federal Law No. 6 of April 2021”, as well as the available guidelines and other important considerations in the mediation process.Full details here: https://www.linkedin.com/posts/ciarb-ymg-uae-branch_mediation-some-topical-considerations-activity-6924967897966469120-SrDQ?utm_source=linkedin_share&utm_medium=member_desktop_web
On 28 March 2022, during the Paris Arbitration Week, the CIArb UAE Branch in collaboration with the CIArb French Chapter on the topic of Strategies and Tools for Achieving Early and Speedy Dispute Resolution. During this webinar the speakers explored the tools available to an arbitrator to secure early dispute resolution (notably early disposition of issues, or putting in place an arb-med-arb procedure). The speakers also discussed current trends in the increased use of tiered dispute resolution clauses by businesses, and the use of mediation by arbitration institutions some of which even incorporate advocacy of mediation into their rules. A special insight was given into mediation and arbitration in the era of emerging technologies like AI, smart contracts and blockchain and of the BAS (Business Arbitration Scheme) developed by the CIArb to provide simple, cost-effective, and timely resolution for disputes of low to medium monetary issues. Watch it here: https://www.ciarb.org/events/strategies-and-tools-for-achieving-early-and-speedy-dispute-resolution/
On Tuesday 22 March 2022, the CIArb Young Members Group (UAE Branch) hosted an evening of relaxed golf and networking at TopGolf, Dubai.
Accomplishments of CIArb
CIArb is delighted to have been confirmed as an approved arbitration body under the Commercial Rent (Coronavirus) Act (the Act), which received Royal Assent on Thursday 24 March 2022. The Act introduces a new statutory arbitration process for disputes relating to commercial rent arrears accrued when businesses were forced to close due to government-mandated Covid-19 lockdowns. Read the full announcement here: https://www.ciarb.org/news/commercial-rent-act/
Newsworthy events (1)
The Chartered Institute of Arbitrators (CIArb) is working in partnership with the Law Society of Scotland (LSS) to help promote the use of arbitration and other forms of alternative dispute resolution (ADR). With recent disruption to court services, ADR is an attractive option for many clients.
We believe that one of the best ways in which we can promote the use of ADR is to provide high quality training to enable aspiring ADR professionals to acquire the necessary skills and knowledge in this field.
Between them, CIArb and LSS provide a range of training, qualifications and accreditations ranging from entry level learning opportunities through to CIArb Diplomas and on to specialist accreditation by the LSS. Read the full announcement here: https://www.ciarb.org/news/promoting-alternative-dispute-resolution-in-scotland/
The Chartered Institute of Arbitrators (CIArb) and the British Virgin Islands International Arbitration Centre (BVI IAC) sign Memorandum of Understanding to promote international ADR. The aim of this partnership is to create a positive environment for alternative dispute resolution (ADR) by, among other things, delivering CIArb education and training, working together more closely, and promoting ADR within the region. Read the full announcement here: https://www.ciarb.org/news/new-partnership-to-promote-international-adr/
We chat to Sergejs Dilevka, 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 Counsel at Galadari Advocates & Legal Consultants based in Dubai, where I predominantly focus on international commercial arbitration.
My day-to-day responsibilities involve advising and representing clients with respect to potential or existing arbitral proceedings. I offer a comprehensive service in this regard. My tasks vary and may involve:
advising on appropriate or existing arbitration clauses or institutions;
analysis and preparation of a client’s claim or defence;
negotiating with the other side;
drafting and filing submissions;
attending hearings to represent the client’s position; and
enforcement or challenging of arbitral awards.
In addition, I am engaged in the firm’s business development efforts, including attendance at potential client meetings, industry conferences, and other social and networking events.
I am also increasingly involved in the training and development of my colleagues. I regularly deliver DLAD’s CLPD course on Recognition and Enforcement of Arbitral Awards in the UAE, including ADGM and DIFC.
I was attracted to this position by Galadari’s offer of an opportunity to head and continue developing the firm’s commercial arbitration practice.
Q. When and how did you get to this position?
A. My career in arbitration began in 2008, when I was fortunate enough to be invited by Professor Adnan Amkhan Bayno C.Arb to join the claimant’s counsel team in Mohammad Ammar Al-Bahloul v The Republic of Tajikistan, an investment treaty arbitration brought on the basis of the Energy Charter Treaty. At that point in time, I was already in full time employment with a company in London and had just registered for an LLM program at Queen Mary College.
I have more than 13 years of experience in advising and representing clients in institutional and ad hoc international and domestic arbitration proceedings. My experience covers a wide range of industries, sectors, and types of disputes.
Throughout my career, I have acted as counsel, tribunal secretary and arbitrator.
These roles helped to improve my understanding of the procedural aspects and provided an appreciation for the inner-workings and dynamics within the arbitral tribunal and the arbitral institutions.
I have also authored multiple publications offering insights on the trends and developments in international law and international arbitration.
Last year, I was approached by Galadari, who were seeking a replacement for a retiring senior arbitration specialist. Prior to joining Galadari, I practised at Al Tamimi & Company’s arbitration department in Dubai.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. My first meaningful contact with CIArb came around 2010, when I acted as a tribunal secretary in an arbitration hearing, which was held at CIArb’s hearing facilities at 12 Bloomsbury Square, an impressive, listed building in the centre of London.
I joined CIArb in 2015 and subsequently became a Member by virtue of demonstrated experience.
CIArb is an internationally revered leading institution bringing together academics and practitioners with the aim of achieving professional excellence in this field of alternative dispute resolution. It is difficult to imagine an arbitration practitioner, who is not somehow connected to, had contact with, or at the very least aware of CIArb and the work that it does.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. My biggest achievements are my arbitral appointments, which come as a result of monumental academic and practical efforts, meticulous attention to detail, consistency, and reliability. The trust put in me by the institutions, parties and their counsel is truly humbling.
I think of my arbitral appointments as being part of a natural progression and continuous development as an arbitration practitioner covering work as counsel with significant experience as a tribunal secretary.
Another achievement that comes to mind is being part of an international expert team, assembled by the Asia Development Bank, to advise the Government of Uzbekistan and prepare drafts of its newly enacted Law on International Commercial Arbitration, which was successfully enacted and came into force last year. I feel immensely proud of the team’s contribution to Uzbekistan’s body of legislation, especially, in the field of arbitration.
I have attended, presented at, and benefited from numerous CIArb events, held in the United Kingdom and internationally, gaining valuable insights and making professional connections. I have also been published in CIArb’s The Resolver.
I often find myself initiating research by visiting resources available on CIArb’s website, including CIArb’s guidelines and valuable articles in the Journal (Arbitration: The Journal of International Arbitration, Mediation, and Dispute Management).
Q. What are your aspirations for the future?
A. Overall, I plan to continue my career in arbitration through acting as counsel and, increasingly, as an arbitrator. In the foreseeable future, my goal is to achieve a law firm partnership position.
My current aspirations are focused on increasing involvement in investment arbitration matters, and the new frontiers, such as space law and the metaverse. And I am presently working on my Fellowship application to CIArb.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. Apart from the usual requisites of hard work, attention to detail, humility, desire to learn, patience and so on, I would suggest first to perform a soul-searching exercise to make sure that one is certain that this is their desired path.
If you want to be successful in this profession, it is highly likely that there will be more late nights than you can imagine now. You will have to work over weekends and holidays, you will have to cancel plans, and you will have to learn to overcome difficulties, intellectual challenges, and stress. On the other hand, you will always be intellectually satisfied and, if you do a good job, feel a sense of achievement at the end of each task or case. Knowing that this is your chosen career path, will make the perseverance required when aiming for success that much easier.
Sergejs Dilevka is a Member of the Chartered Institute of Arbitrators. He is a Senior Counsel at Galadari Advocates & Legal Consultants and may be contacted on s.dilevka@galadarilaw.com
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
We chat to Aisha Dalvi, 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 an Associate in Mott MacDonald focussing on contract and commercial management of utilities type projects, particularly wastewater and tunnelling infrastructure.
I started off as a Quantity Surveyor working for Contractors on various types of projects in South Africa. I then moved to the United Kingdom and continued site-based roles with Contractors, progressing to Senior Quantity Surveyor role. To gain experience in consulting, I joined Mott MacDonald in 2008 and progressed from there to an Associate-Contract Management role.
In my current role, I provide project, contract, and commercial management services on a mega infrastructure wastewater project in Abu Dhabi. I manage a multi-disciplinary team of engineers overseeing the supervision of the works under construction. Daily tasks include:
reviewing and responding to correspondence;
Consultation with the client, preparation of presentations and updates for the Client; and
Management of a multi-disciplinary site supervision team, dealing with changes like variation orders and claims and attending meetings with the Contractor and/or Client.
The attraction to this position for me is that I enjoy the variety and the pace of work of mega projects.
Q. When and how did you get to this position?
A. In 2015 I transferred from the UK to Abu Dhabi for a mega wastewater project, which suited my experience, global mobility desire and future aspirations. My commercial management consultancy role had evolved to more of a contract administration, change and project management role. My experience in contract management of large infrastructure wastewater and tunnelling projects in the UK, led to my selection for this role in Abu Dhabi.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. Contract and commercial management of large infrastructure projects will invariably encounter changes, which could lead to variations and/or claims. These changes could lead to disputes, amicable settlement, arbitration or litigation and this is how it is linked with the CIArb.
I completed a MSc Construction Law & Dispute Resolution degree in 2016 and got introduced to the CIArb during my studies. I joined the CIArb as a Member in 2017. By completing the MSc, I was able to gain further confidence from clients regarding my capability to manage change and avoid disputes.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. I think the biggest achievements for me personally has been the journey really, the successful transitions between countries, South Africa to UK and then to UAE. Along the way, I pursued continuous development with completion of a Master’s degree, Project Management Professional (PMP) certification, accreditation with the RICS and membership of CIArb.. Many of my peers who are also CIArb members and who I met whilst studying, have provided invaluable guidance and support to me on this journey while also being my sounding board and a reliable network.
I recently joined the CIArb UAE Chapter mentorship scheme as a mentee, so that I can learn and network with individuals with shared interests.
Q. What are your aspirations for the future?
A. I would like to continue supporting clients in the Middle East in varied consultancy contract management roles, possibly in other sectors apart from wastewater and tunnelling. I hope to successfully complete the CIArb’s mentorship programme and complete further study in mediation and award writing.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. Try to balance experience gained with additional formal learning and certification and continuously try to improve on your knowledge-base and network. Try to be prepared in advance for opportunities which may present themselves in the future and remain engaged with your networks. The pandemic showed us the greater possibilities of continuous connection even whilst working remotely. Working on international assignments can be challenging but also very rewarding in terms of personal and career growth. Nothing is permanent. So my advice is give it a try if the opportunity arises.
Aisha Dalvi is a Member of the Chartered Institute of Arbitrators. She is an Associate in Mott MacDonald and may be contacted on aisha.dalvi@mottmac.com.
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
We chat with Sean Yates, General Counsel for China State Construction Engineering Corporation (Middle East) L.L.C. and 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 was attracted to China State Construction because of its involvement with iconic projects across the region and because the size of its operation would require me to use all of the skills I had acquired so far. My role allows me to focus on the construction sector, which had been a large part of my previous General Counsel role with a family-owned group of companies, and provides the opportunity to work within a Chinese cultural environment, which is something new.
I welcome the opportunity to lead a larger team of eight, compared to my previous team of two and to play a part in encouraging younger lawyers to develop their careers. I have the flexibility to shape the team into one that delivers the most value to the business by providing advice and representation internally and through the effective management of external legal service providers.
Q. When and how did you get to this position?
A. I was called to the Bar of England and Wales in 1996 and practised out of Chambers for a decade before coming to Dubai for what was meant to be a year. I have now been in Dubai for 16 years. As there is no equivalent Barrister role or life here, employment options were private practice legal consultant or in-house legal adviser. Had I remained in the UK, I doubt that I would have experienced either of these environments. I am grateful that I received opportunities for both, with seven years in private practice and nine years in-house, seven and a half of which have been as General Counsel.
Perhaps the most significant part of this is how fortunate I have been to experience the legal professional adviser role from these three perspectives, Barrister, legal consultant and in-house Counsel. I no longer wonder what each thinks about the other because I know! I also have a more informed understanding of how they might best work together and can use this knowledge to provide better legal solutions.
The biggest turning point or rather change of direction in my career was my move to the UAE and the decision to stay longer than the initial year. It was not an easy choice, as I took only limited benefit from my first ten years of practice as a Barrister and started afresh with different laws, an unfamiliar legal regime and institutions, and without the professional network, I had built back in the UK. My ‘local experience’ clock was reset to zero. It was like starting a new career.
Q. How is you career linked with the CIArb and at what point did you join the CIArb?
A. Since leaving the UK, I have maintained my status as an employed barrister and conducted over forty-six commercial arbitrations. I remember my first case representing the company at short notice after the external lawyers could not continue acting. It was me against a team of six or seven lawyers on the other side. I remember thinking that at least I had a lot of space to spread out my papers! We did not win, but I was able to split the tribunal such that there was a dissenting opinion in our favour.
Subsequently, I joined CIArb in 2020 to take advantage of its training, its resources, the community, and the professional recognition it offers. I achieved Member status due to my qualifications and experience, and I undertook Fellowship training to sformalise my award-writing skills through Module 3.
I have been particularly impressed by the vocational nature of CIArb’s training. I was able to take an exemption test to pass Module 2 without the need to undergo the full training. For the award writing assessment, training was practical, realistic and had a real-world relevance, far removed from any ‘how to write awards’ textbook. It was also a great opportunity to meet other future arbitrators of all ages from around the world.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. Everybody’s legal career is different, from where you begin to where you end up and every step in between. For me, the most significant achievements have less to do with which University or Law School one attended, where you work, what type of law you practise or how much money you make. In my view, achievement is the measure of the difference you made to the clients you acted for, the extent to which you remained true to yourself and your beliefs, and the contribution you made to help others, particularly other lawyers, get a step closer to their own goals.
Learning never stops, as a lawyer and in life generally. I have regularly taken courses on areas of law that interest me and am currently halfway through a PhD that touches on the relationship between International Commercial Arbitration and the new International Commercial Courts. My FCIArb qualification is my most recent qualification and is, I think, essential to my increased sitting as an arbitrator.
Q. What are your aspirations for the future?
A. I am looking forward to opportunities to sit as an arbitrator. Had I remained in the UK, I would probably have begun to sit as a Deputy District Judge, which is a part-time judicial appointment. As a barrister, it is a natural path to look towards the bench and sit on cases. It is seen as a way of giving back to the community. Sitting as an arbitrator while maintaining my General Counsel role appeals to me as a way of satisfying that ambition. If the opportunity comes to sit more frequently as an arbitrator, with a return to academia, this would be a possible third career. The law provides fertile ground for branching out.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. Stay open-minded about the type of legal roles and the type of law you may practise throughout your career, not just because the opportunities that present may take you in unexpected directions, but also because wherever you work, there is a chance to grow and individualise your skillset.
Sean Yates, MCIArb, is a Member of the Chartered Institute of Arbitrators. He is the General Counsel of China State Construction and may be contacted on sean_yates@chinaconstruction.ae
To be interviewed in future Newsletters, please contact our interviewer Kasia Halliday at khalliday@thinkbrg.com
Catching up with Faris Shehabi, FCIArb, a disputes lawyer for over 15 years and outgoing member of the UAE Branch Committee.
Q. Tell us about you and how you landed on the CIArb UAE Branch Committee?
A. I have always been very active with CIArb, first with the Australia branch then the Malaysian branch during my time in Kuala Lumpur, and onto the East Asia Branch when I relocated to Shanghai. It was only natural when I moved to Dubai that I would look to the UAE Branch as a way to connect with my fellow arbitration practitioners in my new home, and the Branch Committee was the perfect way to continue giving back to an organisation that has given me so much in my career.
Q. How has your experience been so far and what have been your contributions since joining?
A. Despite the various complications thrown up by Covid, my experience has been overwhelmingly positive. I have had the chance to meet many members of the UAE Branch (as well as numerous foreign branches) and to be involved in what is an extremely active Branch Committee.
Being part of such an active branch has also given me plenty of chances to contribute in lots of different ways. There is the usual behind the scenes stuff like taking part in meetings and adding your voice, contributing to the newsletter and so forth. But I have also had the privilege of arranging events with local practitioners on topical issues like third party funding and collaborating with branches from other jurisdictions on events here in Dubai. The joint event with the Brazilian branch comes to mind, and we have an event with the Iberian chapter coming up later in the year which I have had the pleasure of arranging also.
Q. You are retiring from the Committee this year. What is your advice for the new joiners on the Committee, and do you have a parting message?
A. My advice is to be as involved as you can with the time available to you, don’t feel like you have nothing to offer, every new voice and perspective adds something to the table. This is your opportunity to practice leadership but above all to give back to the organisation that has done and continues to do so much for the ADR community here in the GCC but all over the world. Also be creative! The best initiatives and events are often the most different from what is being done everywhere else.
As for a parting message, I would just congratulate the UAE Branch on both its participation and inclusivity. The number of people looking to join the Committee is testament to its impact, and the diversity not only in traditional measures like gender and race but also type of expertise and career background is constantly improving.
Q. What does the CIArb strategy 2021-2023 represent for you?
A. I think a big part of the strategy is working out what the UAE Branch’s role will be in the post Covid ADR landscape, and what the best use of the Branch’s resources will be. Traditionally one of our main functions has been the provision of training services for example, but with the growing popularity of online delivery we need to rethink the model for how training services are delivered, not just in the GCC but globally. Another key factor, which is quite related by the way, is how the UAE Branch can better cater to regional needs, so initiatives like Arabic language training for example and involving local stakeholders will continue to be extremely important.
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. It’s a wonderful thing to take part in something like the UAE Branch Committee; you make new friends, professional connections, and have a great opportunity to give back to the ADR community. Once you have decided to get involved, firstly congratulations, but secondly, don’t think that you need to be a senior recognised arbitration practitioner in order to contribute. The Branch is there for all its members, irrespective of seniority or experience, and often the best or most relevant contributions actually come from the younger or less experienced members. Also, you don’t necessarily need to be on the Committee to be involved. On the contrary there are lots of ways to get involved through trainings, events, the newsletter and so on. I have always found the CIArb UAE Branch to be a particularly open and inclusive group, and all members should feel empowered to contribute.
Faris Shehabi is a Fellow of the Chartered Institute of Arbitrators and Committee Member of the CIArb UAE Branch. He acts as counsel in arbitrations and is a Senior Associate with Dentons & Co. Faris can be contacted at faris.shehabi@dentons.com.
With the prevailing use of technology in arbitral proceedings, it is useful to understand how UAE courts deal with the issue and particularly with respect to conducting a hearing by virtual means. Nayiri Boghossian, MCIArb examines UAE legislation on this point as well as a recent decision by Dubai courts.
by Nayiri Boghossian MCIArb
A lot has been written on the subject of arbitration and technology over the past couple of years due to the increased use of technology in arbitration. This article examines the use of technology in arbitration proceedings from the perspective of the laws of the United Arab Emirates (“UAE”). It provides a review of UAE legislation on the topic and examines a recent court decision issued by Dubai courts dealing with the use of technology in arbitral proceedings.
Legislation about the Use of Technology
The UAE embraced the use of technology in court proceedings way before the recent pandemic. Federal Law No. 10/2017 amending certain provisions of the Civil Procedures Law No. 11/1992 (“CPL”) added a section to the CPL entitled “The Use of Remote Communication Technology in Civil Procedures”. This new section included 12 articles which provide for the use of remote communication technology whether visual or audio to conduct the proceedings. The use of technology applies to all aspects of proceedings including attending hearings, exchanging documents, serving notice of proceedings, etc. In 2019, Ministerial Decision no. 260/2019 (“Decision”) was issued providing procedural guidelines to the judiciary on the use of electronical means and remote communication. The Decision provided further details on the use of technology in filing proceedings, serving notice, attendance of hearings, exchange of submissions and documents, amongst others. The Decision expressly stipulates that deliberation amongst judges can be done through electronic means.
As far as arbitration is concerned, the legislator took into consideration the use of technology when promulgating Federal Arbitration Law No. 6/2018 (“Arbitration Law”). Here again, technology was adopted before the pandemic created a need for it. Article 28(2)b of the Arbitration Law allows the tribunal, unless otherwise agreed by the parties, to “hold arbitration hearings with the parties and deliberate by modern means of communication and electronic technology.” Article 33(3) states that “Hearings may be held through modern means of communication without the physical presence of the parties at the hearing.” Witness testimony can also be provided remotely as per Article 35.
Case Summary
The use of technology was also welcome by the courts which started using technology in all aspects of proceedings. Additionally, in a recent ruling of Dubai Courts, the courts refused to set aside an arbitral award which was challenged on the grounds that technology was used in deliberations and in holding hearings. The said case related to an award rendered on 28 June 2018 in an ad hoc arbitration seated in Dubai (“Award”). Once the Award was rendered, the Respondent filed an application for the annulment of the Award before Dubai Courts. In its application, the Respondent invoked many grounds of challenge including the conduct of the proceedings remotely. The Respondent raised in this respect a number of issues such as the hearings not taking place in Dubai, the tribunal not meeting with the parties, and the award’s reliance on the provisions of the Arbitration Law in allowing hearings and deliberations to take place through technological means of communication. The latter ground of challenge was based on the fact that the Arbitration Law was not applicable to the dispute as the proceedings took place before the Arbitration Law was issued1.
When the case reached the Dubai Court of Cassation2 (“Court”), the Court rejected all the grounds of annulment raised by the Respondent. With respect to the challenges relating to the remote conduct of the hearings, the Court explained that Article 212 of the CPL, which was applicable to the arbitral proceedings, allowed the parties to determine the procedures applicable to the dispute3. The terms of reference signed by the parties indicated that the parties have used the discretion granted to them in choosing the procedures to be followed. The said terms of reference indicate the parties’ agreement that the tribunal shall conduct the arbitral proceedings through modern technological means including video-conferencing. The arbitral tribunal implemented the agreement of the parties in conducting the proceedings remotely using modern means of communication. On these bases, the Court upheld the Award.
The Court mentioned that the parties were ahead of the legislation allowing the use of technological means, referencing Law No. 10/2017 and the Arbitration Law. In that respect, the Court explained that Federal Law No. 10/2017 added a new chapter to the CPL related to the use of technology the purpose of which is to facilitate court proceedings by allowing the conduct of such proceedings remotely. As such, the physical presence of the parties before the court is not required and they may submit their defenses remotely. With respect to the Arbitration Law, the Court mentioned that articles 28 and 33 allow for arbitral hearings and deliberation amongst the tribunal members to be done through technological means.
Concluding Remarks
Although the Court mentioned the Arbitration Law as well as the chapter of the CPL relating to technology, it cannot be said that it applied them to the case at hand to reach its ruling. Instead, the Court’s ruling is based on Article 212 of the CPL. As such, the Court did not attempt to apply the Arbitration Law retrospectively nor attempted to apply to arbitral proceedings, the CPL provisions relating to court proceedings.
In conclusion, parties to proceedings conducted through video conferencing and other technological means can be assured that UAE courts will not invalidate an award stemming from such proceedings simply because the proceedings were conducted through virtual means. The Court’s position is based on the various legislative texts reviewed above and which uphold the use of technology. Furthermore, this is in line with the pro-arbitration approach adopted in the UAE and which we are increasingly witnessing.
[1] The Arbitration Law entered into force in June 2018, a month after its publication in the official gazette.
[2] Case No. 36/2020 Cassation Commercial
[3] Article 212, which has been repealed since the promulgation of the Arbitration Law stated in subclause 1 that parties may agree on specific procedures to be followed by the arbitrator.
Nayiri Boghossian is a member of the Chartered Institute of Arbitrators. She is a partner at Al Owais Advocate and Legal Consultants and can be contacted on nayiri@alowaislegal.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
Uditha Tharanga, FCIArb, assesses the efficiency and workability of the new multi-party and multi-contract arbitration provisions under the new 2022 DIAC Arbitration Rules with reference to the construction industry
by Uditha Tharanga FCIArb
Parties to construction contracts regularly use arbitration as a mechanism of dispute resolution because of its benefits over other ADR methods and litigation. Frequently, arbitration proceedings are limited to the parties (normally two) to the contract due to the complexities of joining third party non-signatories to the proceedings.
However, with the complex contractual relations between stakeholders in the business industry, in particular the construction industry (PPP & PFI contracts, joint ventures, consortium agreements and the like), the increasing number of complex multi-party disputes has demanded the requirement of efficient laws and rules of arbitration which are workable and capable of providing a self-sufficient and reliable mechanism for multi-party arbitration.
Recently, the Dubai International Arbitration Centre (DIAC) launched the highly anticipated DIAC Arbitration Rules 2022 (“DIAC 2022 Rules”), which came into effect on 21 March 2022. Unlike the old rules1, the new rules seem to provide certain attractive solutions to multi-party / multi-contract arbitration for parties wishing to resolve their disputes through DIAC.
In this article, I review how efficient these rules are in relation to multi-party / multi-contract disputes with particular focus to the construction industry. Article 8.1 of the DIAC 2022 Rules provides that:
8.1. Subject to the provisions of Articles 6.1 and 6.2, a party wishing to commence an arbitration under the Rules may submit to the Centre a single Request in respect of multiple claims arising out of or in connection with more than one agreement to arbitrate, provided the requirements of Article 8.2 below are or may be satisfied.
Multi-party arbitration may be required either because there are several parties to a single contract or due to the existence of several contracts with a single arbitration agreement (such as a framework agreement) or because there are several contracts with different parties that have a connection to the matter in dispute.2 In the former type of cases, although there is a single arbitration agreement (such as a Joint venture or consortium agreement), the parties may still demand that each would like to appoint an arbitrator.3 Article 12.5 of the DIAC 2022 Rules has provided a solution to this in providing for the joint nomination of the arbitrator for appointment by the Arbitration Court of DIAC.
However, it is unclear as to why Article 8.1 of the DIAC 2022 Rules only addresses the claims arising in connection with more than one agreement to arbitrate and not the claim arising in connection with more than one contract such as provided for under the ICC Arbitration Rules 20214. Multi-party disputes under multiple contracts yet under the same arbitration agreement (such as under a framework agreement) are seemingly excluded from the ambit of Article 8.1. Although such disputes are of rare occurrence, they can sometimes be encountered in the construction industry where the owner, developer, consultant, prime contractor and the subcontractors are bound by a single arbitration agreement.
Article 6.15 of the DIAC 2022 Rules is to be read in conjunction with their Article 8.2 which introduces certain criteria to conduct multi-party arbitrations. Based on Article 8.1 of the DIAC 2022 Rules, the party who is referring such claims to the Centre must first ensure that these criteria are or may be satisfied. Then, under Article 8.2 of the DIAC 2022 Rules, it is for the Arbitration Court of DIAC to consider the established criteria in deciding whether to allow consolidation and to decide on a prima facie basis whether any criterion under Article 8.2 (a) or (b) of the DIAC 2022 Rules are met.
Articles 6.1 and 6.2 of the DIAC 2022 Rules deal with pleas raised by a respondent in objecting to conduct multi-party arbitration. The Tribunal and the Arbitration Court are vested with the power to decide on such objections after, and before the constitution of the Tribunal, respectively. Such approach is favourable as these objections are usually made during the early stages prior to appointment of the Tribunal (the appointment of the Tribunal may be deferred until the objection is settled). Hence it is a well thought out addition. The more so since Article 8.4 of the DIAC 2022 Rules is also consistent with the Kompetenz-Kompetenz principle based on which a Tribunal has the power to rule on its own jurisdiction:
8.4. The decision of the Arbitration Court in respect of consolidation shall be without prejudice to the Tribunal’s powers to rule on its own jurisdiction under Article 6.1 or on a party’s right to apply for consolidation under Articles 8.5 and 8.6 below.
Under Article 8.2, apart from the usual requirements such as agreement by all parties, having compatible arbitration agreements, existence of same legal relationship and the involvement of the same parties, the DIAC 2022 Rules contain the Article 8(b)(ii) criteria whereby the underlying contracts are to consist of a principal contract and its ancillary contracts.6 These types of contracts can be commonly observed in the construction industry (i.e. the main contract, subcontracts and supply agreements). The requirement of Article 8.2 (b) (ii) and (iii) is broader than the criteria established by other international arbitral rules where the only requirement is generally that the claims should arise out of the same transaction or related transactions. It follows that this approach is similar to that of the ICC and ICDR rules which demand the consent of all parties for the purposes of multi-party arbitration with an important distinction as discussed above. However, this approach is unlikely to afford the flexibility afforded by other arbitration rules such as the Swiss arbitration rules7 which is often preferred. This is flexibility is primarily important in conducting multi-party arbitrations.
The rules further set out an important distinction between the pleas made after constitution of the tribunal and those before constitution of the tribunal. Pursuant to Article 8.2 and Article 8.5 of the DIAC 2022 Rules the consolidation is only possible where the Tribunal has been constituted in one of the arbitrations sought to be consolidated provided no arbitrator(s) has/have been appointed in any other arbitration. Otherwise, the consolidation is only possible if two or more Tribunals that have been constituted comprise of the same members. The consolidation at an advanced stage of proceedings may not be an efficient solution. Consolidation after Tribunals have been constituted for both the arbitrations, has a negative impact on the costs as the dismissed Arbitrators will need to be compensated.
A similar approach has been taken in regards to joinders to distinguish between occasions prior and after appointment of the Tribunal.
The approach of Article 9.48 of the DIAC 2022 Rules is a significant change from the approach of the many of existing rules where in the latter the request for the joinder may not be submitted after confirmation or appointment of an arbitrator.9 It is submitted that the purpose of this restriction is to avoid delay in the proceedings due to pending consideration of a joinder. Another important issue is that a third party who joins should have an equal influence on the constitution of the tribunal. Under the current rules, although the joinder is allowed after the constitution of Tribunal, all parties’ explicit consent is still required for a joinder unlike under the Swiss and ICDR rules which do not require such consent. It is sometimes contended that rules which do not require the explicit consent of the parties are rules with a self-contained mechanism for multi-party arbitration and, hence, preferred.10
The latter requirement has been dealt with in the form of explicit consent of all the parties to the constituted tribunal and the explicit waiver by the joinee of his right to nominate an arbitrator in accordance with the rules or the agreement to arbitrate. In any event, this is required under Article V (1) (d) of the New York Convention under which the recognition and enforcement of an arbitral award may be refused if the composition of the arbitral authority was not in accordance with the agreement of the parties.
Under Article 9.4 of the DIAC 2022 Rules, it is the duty of the tribunal to consider potential conflicts of interests and the impact of a joinder on the efficient and expeditious progress of the arbitration. It is open for the tribunal to decide on matters that possibly act against the joinder and make a proper decision on that regard. In a multi-contract construction scenario, such a case may be observed on occasions where the employer tries to drag a subcontractor into its arbitration with the prime contractor. The plea in this latter case may be filed by the prime contractor. A sound reason for this may include confidentiality issues, unwillingness to disclose financial information and the like.
It is often argued that it is necessary to have a robust multi-party arbitration clause to deal with the stated issues efficiently. However, drafting such clause is not an easy task. It requires careful drafting involving a great degree of detail by addressing multiple possible scenarios. Therefore, it would be better if the selected rules, which are incorporated to the contract, address these issues in detail but not the contract per se. Accordingly, the DIAC 2022 Rules, provide effective solutions to many of the issues brought about by multi-party disputes for parties wishing to resolve their disputes by incorporating these Rules.
[1] DIAC rules 2007 by Decree no. 11 2007 of H.H. the ruler of Dubai on 06 May 2007
[2] Blackaby, Nigel. Redfern and Hunter on International Arbitration. Oxford ; New York :Oxford University Press, 2015
[3] BKMI Industrieanlagen GmbH, Siemens AG v. Dutco Construction Co. (Private) Limited , French Cass. Civ. 1ere, 7 January 1992, (1992)
[4] Article 9 of the ICC Arbitration Rules 2021
[5] Article 6.1 provides that the tribunal shall have the power to rule on its own jurisdiction
[6] Article 8.2 (b) (ii)
[7] Swiss Rules of International Arbitration 2021, published by Swiss Arbitration Centre
[8] Under Article 9.4 of DIAC 22 Rules, Tribunals may allow the joinder if certain criteria are satisfied
[9] See article 7 of ICC arbitration rules 2021 which states that “no additional party may be joined after the confirmation or appointment of any arbitrator”
[10] Ibid 4
Uditha Tharanga is a Fellow of the Chartered Institute of Arbitrators. He is an Adjudicator, both a Quantum and Forensic Delay Expert, and Researcher in the fields of Multi-Party Arbitration and Third-Party Funding in International Arbitration focusing on the construction industry. He can be contacted on udtharangaw@gmail.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
Wisal Nema, MCIArb shares the history behind the development of arbitration laws in Iraq and how they compare to the UAE’s arbitration laws at this point in time.
By Wisal Nema MCIArb
In the Arab region, where countries have designated specific legislation for arbitration, as is the case in the United Arab Emirates, this proved to be a successful and significant step forward in the development of their arbitration framework. Actions already seem to be taking place in that direction with Iraq’s accession to the 1958 New York Convention on the Recognition of Arbitral Decisions and the Implementation of Foreign Judgments through Law No. 14 dated 6 April 2021.
Arbitration has been used as a means of resolving disputes instead of court litigation in many cultures. It is widely recognized throughout history.
For example, the Greek philosopher, Aristotle, emphasized that parties to a disagreement may choose arbitration over litigation in order to avoid litigation1. On a stone tablet unearthed in ancient Iraq during the Sumerian civilization, a five-thousand-year-old peace contract between the towns of “Uma and Lagash” was discovered as well as an agreement to resolve any disputes between the two cities via arbitration2. This implies that Mesopotamia, whose geographical location was partly in ancient Iraq, was familiar with the notion of arbitration as a means of resolving disputes.
Pre-Islamic Arabs were also familiar with arbitration as a way of resolving conflicts and rivalries. The Quraysh arbitration of the Prophet Mohammed (SAW) in putting the “Black Stone” in its position from the Kaaba five years before the journey to Islam was perhaps the most important arbitration episode in the pre-Islamic period3. Muslims have inherited arbitration from the Arab practices that were in place at the time of Prophet Muhammad’s mission (PBUH). Islamic law upheld good Arab practises while eradicating or amending those that were corrupt or incompatible with Islam’s core values.
Later in the Ottoman Empire, a codification effort was carried out to bring out the various subjects of Islamic law in the form of codes, similar to European legal codes. The end product was officially called “Majallat al –Ahkam al-Adliyyah,” and was commonly referred to as the “Majallat” code in 18764.
“Majallat” literally means a written book. Majallat encompasses a series of laws that govern commerce, litigation, and evidence, as well as the arbitration norms in its Articles 1841 to 1851, which were implemented in all civil courts in Ottoman-ruled territories. Iraq was one among them.
When the Iraqi Civil Code was written in 1951, it retained the arbitration provisions from the Majallat which were found in articles 139 to 149 of the Code. Unfortunately, the articles were not comprehensive enough and when they were put into practice, they caused problems, some of which are outlined below. As a result, the Iraqi government sought professional input from Egypt’s experts, such as Abdul Razzaq Al-Sanhoury, one of the professors who participated in the writing of the Iraqi Code of Civil Procedures No. 83 1969 (“CCP”). The CCP garnered a lot of attention for arbitration. A total of 26 articles (251 to 276 articles) in the new Code were devoted to the subject.
However, despite the simplicity and clarity of the arbitration laws established under the new Code, there are still certain challenges to be overcome when it comes to the execution of arbitral awards.In contrast, the United Arab Emirates has the most recent arbitration law in the Middle East region, notably, the United Arab Emirates Federal Legislation No.6 of 2018 on Arbitration. Accordingly, I thought that it would be interesting to share some comparative insights with you, and at the same time identify what could be done to improve the arbitration framework in Iraq.
Arbitration has been used as a means of resolving disputes instead of court litigation in many cultures. It is widely recognized throughout history.
For example, the Greek philosopher, Aristotle, emphasized that parties to a disagreement may choose arbitration over litigation in order to avoid litigation1. On a stone tablet unearthed in ancient Iraq during the Sumerian civilization, a five-thousand-year-old peace contract between the towns of “Uma and Lagash” was discovered as well as an agreement to resolve any disputes between the two cities via arbitration2. This implies that Mesopotamia, whose geographical location was partly in ancient Iraq, was familiar with the notion of arbitration as a means of resolving disputes.
Pre-Islamic Arabs were also familiar with arbitration as a way of resolving conflicts and rivalries. The Quraysh arbitration of the Prophet Mohammed (SAW) in putting the “Black Stone” in its position from the Kaaba five years before the journey to Islam was perhaps the most important arbitration episode in the pre-Islamic period3. Muslims have inherited arbitration from the Arab practices that were in place at the time of Prophet Muhammad’s mission (PBUH). Islamic law upheld good Arab practises while eradicating or amending those that were corrupt or incompatible with Islam’s core values.
Later in the Ottoman Empire, a codification effort was carried out to bring out the various subjects of Islamic law in the form of codes, similar to European legal codes. The end product was officially called “Majallat al –Ahkam al-Adliyyah,” and was commonly referred to as the “Majallat” code in 18764.
“Majallat” literally means a written book. Majallat encompasses a series of laws that govern commerce, litigation, and evidence, as well as the arbitration norms in its Articles 1841 to 1851, which were implemented in all civil courts in Ottoman-ruled territories. Iraq was one among them.
When the Iraqi Civil Code was written in 1951, it retained the arbitration provisions from the Majallat which were found in articles 139 to 149 of the Code. Unfortunately, the articles were not comprehensive enough and when they were put into practice, they caused problems, some of which are outlined below. As a result, the Iraqi government sought professional input from Egypt’s experts, such as Abdul Razzaq Al-Sanhoury, one of the professors who participated in the writing of the Iraqi Code of Civil Procedures No. 83 1969 (“CCP”). The CCP garnered a lot of attention for arbitration. A total of 26 articles (251 to 276 articles) in the new Code were devoted to the subject.
However, despite the simplicity and clarity of the arbitration laws established under the new Code, there are still certain challenges to be overcome when it comes to the execution of arbitral awards.In contrast, the United Arab Emirates has the most recent arbitration law in the Middle East region, notably, the United Arab Emirates Federal Legislation No.6 of 2018 on Arbitration. Accordingly, I thought that it would be interesting to share some comparative insights with you, and at the same time identify what could be done to improve the arbitration framework in Iraq.
Type of the Dispute
Unlike Article 2 of the UAE Federal legislation which makes reference to commercial arbitration, Article 251 of the CCP does not identify the types of arbitration covered by it.
International Arbitration
Article 3 of the UAE Arbitration Law provides extensive information on the subject of international arbitration. In contrast to that, the CCP does not address international arbitration or the option of using it. Nor does it give disputants the right to seek arbitration outside the country.
Independence of Arbitration Clauses
Article 6 of the UAE Arbitration Law states that the arbitration clause is separate from other terms of the contract and is not affected by the contract’s nullity, renegotiation, or termination. There is no such provision in the CCP and it does not address whether an arbitration clause remains valid and effective if the main contract is invalid.
Power of the arbitral tribunal to issue interim measures and to rule on its competence
Articles 19 and 21 of the UAE Arbitration Law give arbitrators the power to issue interim measures or rule on their own jurisdiction. Under the CCP arbitrators cannot do so. Instead, Article 228 of the CCP provides that parties must make an application to the appropriate court.
The Award of Arbitral Tribunal
In most jurisdictions including the UAE, an arbitral award is not subject to appeal except in certain situations specified in the Code of Civil Procedure or the New York Convention.
Under the CCP, arbitrators are required to render the arbitral award within the time frame determined by the parties. Alternatively, arbitrators are required to deliver the award within six (6) months by agreement or based on the views of a majority of arbitrators following a joint debate among themselves. Due to the fact that it is not “res judicata,” the arbitral decision cannot be enforced unless it is ratified by the appropriate court of First Instance in Iraq.
According to Article 274 of the CCP, after reviewing the Arbitral Tribunal’s decision, the Court of First Instance issues a ruling approving, modifying, or cancelling it in whole or in part.
It is worth noting that the Iraqi Civil Procedure Code makes no mention of accepting the authority of arbitrators’ award, but it does state that the arbitrators’ award is not immediately enforceable. Rather, the decision must be lodged with and approved by the relevant court, after which it is subject to all judicial ruling appeal procedures.
Set aside (annulment) the Award
Under Article 54 of the UAE Arbitration Law, there is a set time limit of 30 days from the date of notification of the award to enter an action for nullity of the arbitral award. The CCP does not specify a time limit for nullifying or appealing an arbitral award. However, Article 273 of the CCP states that when the arbitrator’s decision is presented to the court, the litigants may adhere to its invalidity.
Conclusion
In light of these observations, as well as other concerns regarding existing legislative guidelines, it is my humble view that Iraq should consider the enactment of new arbitration legislation with the goal of organising the entire arbitration process more effectively, including its commencement, procedure, and execution. This would aid in the promotion of investment and the growth of the economy. In the Arab region, where countries have designated specific legislation for arbitration, as is the case in the United Arab Emirates, this proved to be a successful and significant step forward in the development of theirarbitration framework.
Actions already seem to be taking place in that direction with Iraq’s accession to the 1958 New York Convention on the Recognition of Arbitral Decisions and the Implementation of Foreign Judgments through Law No. 14 dated 6 April 2021.In my view, this is the start of the process of developing investor confidence and comfort with Iraqi investments and I hope that this trend will continue.
[1] Syed Abdul Nabi Muhammad and Arbitration in Commercial and International Disputes, Theory and Practice
[2] Kahtan Abdulrahman al Dorri- Arbitration Contract in Islamic Jurisprudence and Positive Law, p.38
[3] Muhammad Al-Awa, Majid Kholousi, Muhammad Naji – Arbitration in Islamic Sharia and International Regulations, p. 24
[4] Maher S. Mahmassani, Islam in Retrospect Recovering the Message
Wisal Nema is a Member of the Chartered Institute of Arbitrators. She is a Civil Engineer, and Head of the Planning and Controls section at Alturath Engineering Consultants and may be contacted on wisalnema2004@yahoo.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
A joke and some information… what we like to call Jokamation
by Mohieeldin Elbana MCIArb
Q) What kinds of building have the most stories? A) Libraries!
Q. What does the Public Order mean? And does it change?
Article 3 of the UAE Civil Transactions Law provides that:
“Public order shall be deemed to include matters relating to personal status such as marriage, inheritance, lineage, and matters relating to government [ruling], freedom of trade, circulation of wealth, rules of individual ownership and the other rules and foundations upon which society is based, in such a manner as not to conflict with the definitive provisions and fundamental principles of the Islamic shari’ah.”
The Supreme Courts of the UAE provided clarification on the concept of public policy, in addition to the examples listed under Article 3 above, in several rulings including that:
Public Policy rules are those upon which UAE society is based and/or intended to achieve a general political, social or economic interest related to the higher society system including the registration of real estate transactions and, therefore, contracting parties may not agree otherwise; and
However, where the purpose of the legal rule is to protect the personal interests and/or rights of the individuals within the society, it will not relate to public policy and, hence, is arbitrable.
In this meaning, please see the following judgments:
The Abu Dhabi Court of Cassation, Case no. 121 of 2019 year 14 JA, judgment issued on 21/05/2019;
The Dubai Court of Cassation, Case No. 142/2014 Civil, judgment issued on 12/03/2015; and
The Abu Dhabi Court of Cassation, Case no. 477 of 2014 year 8 JA, judgment issued on 19/03/2014.
Further, the concept of public order is dynamic and may change by time. Some of the changes may include:
Registration of Real Estate transactions/ disposals in the relevant Register (Dubai Law no. 13 of 2008 as amended);
Decennial Liability of Developers in Dubai (See Dubai Law no. 6 of 2019); and
Awards to be issued and signed in a specific form (such as the requirement that an award is to be signed by the Tribunal members on all its pages and not only the last page – See recent Court of Cassation judgment dated 21/04/2022, Case No. 109/2022 Civil.
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
22 May 2022 Introduction to International Arbitration – In Person
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) Dates to be announced
2022 Accelerated Route to Fellowship International Arbitration (format to be confirmed) Dates to be announced
Social and other events
Q3/Q4 2022 Panel discussion on “How to get your first appointment as Tribunal Secretary”, in collaboration with Dubai International Arbitration Centre Date to be announced
15 September 2022 Event in collaboration with ADGM on Technology
October 2022 Mock arbitration event for students of BuiD Date to be announced
14-18 November 2022 CIArb UAE Branch main event (in person and online) – Dubai Arbitration Week
Q4 2022 Event in collaboration with CIArb Iberian Chapter and Dubai International Arbitration Centre Date to be announced
14-15 November 2022 CIArb and AIEN/SCCA Dispute Resolution Conference in Dubai
Q3/Q4 2022 Joint Event with ICC Date to be announced
We chat to Aarta Alkarimi, MCIArb, arbitrator, lawyer and mentor on the CIArb UAE Branch’s Mentoring Programme and receive testimonials from participants on the Programme.
Q. Tell us a little bit about your career journey and what your work involves currently?
A. I consider myself privileged to have had the opportunity to serve as a lawyer for some of the most notable entities in the construction industry, in addition to being appointed as arbitrator on matters governed under various institutional rules and seats.
I qualified as a lawyer in 2003 in New York and immediately started working at a top tier law firm specializing in construction and infrastructure law. A good portion of my work was of international nature and involved various projects across the world. So, I was exposed to various cultures and their professional environments.
In 2008, a prestigious white-shoe law firm (headquartered in Washington DC) approached me to relocate to Abu Dhabi and help with the firm’s growth in the Middle East. It was a unique opportunity, and I was ready for it. My work continued to include a great deal of dispute avoidance and dispute resolution, including mediation and arbitration on mega projects around the Middle East.
In 2016, I set up Chrysalis, a consultancy that focuses on arbitration and mediation serving the construction and real estate industries.
Q. At what point did you join the CIArb and how is you career linked with the CIArb?
A. I received my first arbitral appointment in 2013. It was a sole appointment by the court of arbitration of a notable institution. I immediately contacted one of my old bosses who put me in touch with a renowned arbitrator in the UAE. He, eventually, became my mentor. Through my mentor and a female friend who was a member of the management board at the CIArb, I learnt more about the CIArb and its mission. I ended up taking several CIArb courses in arbitration and mediation including the Accredited Mediation Course and the Oxford Diploma in International Arbitration. I benefited a lot from these courses.
As an international arbitrator, I find the CIArb and its guidelines pivotal in my approach to every single. Also, the CIArb provides me with a close network of industry professionals (lawyers, engineers, and experts) who are likeminded.
Q. How did you become involved in the CIArb UAE Branch Mentorship Scheme?
A. An active member of the CIArb recommended me to the committee members in charge of the mentoring programme. Soon after, I received an email invitation to act as mentor and I gladly accepted it. Thereafter, I was put in touch with five industry professionals who became my mentees (some are already Fellows of the Chartered Institute but wanted to gain a bit more practical knowledge).
Q. What was your engagement with your mentees and the facilitator like during the programme?
A. My mentee group includes an architect, a research fellow and lawyer, a practicing solicitor, a civil engineer and quantity surveyor. The excitement and enthusiasm of these professionals are behind the success of our program.
We hold monthly “Zoom” meetings and try to meet in-person after every third such call. Our facilitator does the coordination and ensures we find a suitable date and time to meet once a month.
Prior to coming to the sessions, everyone reads up on the material we have selected together so we can review and discuss them during the sessions.
The material includes various articles of interest such as CIArb, IBA and LCIA notes and guidelines on various aspects of international arbitration. We have also discussed matters related to the profession’s ethics and integrity, mental health, diversity and inclusion.
In addition, the mentees have been put to task to prepare PowerPoint presentations in their respective areas of the profession relating to arbitration and/or dispute resolution.
Our Facilitator and mentee, Kate Blotskaya, researched and presented on calculation of pre and post-award interest from a quantum perspective.
Mentee, Ahmed Mazlom prepared a comprehensive hour-long presentation on comparison between Commercial and Investment Treaty Arbitration.
Mentee, Austen Smith is working on a presentation on Betterment in relation to design defects; both from the perspective of mitigation and damages.
Mentee, Ross Martin will present on investor state arbitration.
When possible and during our in-person meetings, we have invited other arbitrators to join and share their insights about their journey.
Q. What do you think mentees could do more of to obtain more benefit from the program in the future?
A. We are lucky to be dealing with senior professionals in the mentorship program. My mentees are the true force behind the initiative. They know that they, and only they, hold the keys to their professional development. They come prepared and eager, so we have meaningful discussions, exploring the academic material and practical scenarios that could result from them.
Q. As a mentor, what do you take away from this mentoring cycle? Any learnings to share with other mentors, mentees and facilitators who will be joining the program in the next cycle?
A. I think we should have a light approach to the program. It needs to be fluid rather than rigid and formal and a collaborative process. The mentor, in addition to sharing knowledge, should create an open and professional space for mentees to ask questions and share information with ease and without the fear of being judged.
Q. To close off, we have two last questions – What has been your biggest achievement and would you say that being part of the CIArb helped you realize it in any way?
A. I have been truly fortunate to appear as counsel before some of the most impressive international arbitrators known to our industry and later serve with some of these professionals on tribunals. My involvement with the CIArb provided me with credibility, further rooted my credentials, and widened my network.
Q. What are your aspirations for the future?
A. To continue learning and passing it forward. As my own mentor always says: “we are all in it together”.
Aarta Alkarimi is a Member of the Chartered Institute of Arbitrators. She is an international arbitrator and lawyer specializing in construction and engineering. She may be contacted at alkarimi@chrysalis-llp.com
Mentoring Program Testimonials
“For me the mentoring programme has been invaluable. I became a Fellow in 2012 by undertaking the Kings College Masters in Construction Law and the optional award writing exam. I was a member of the London branch until my move to the UAE. The programme has allowed me to widen my network and bring back to the front of my mind what I previously learnt. Both my mentor and facilitator have been excellent in leading the group and distilling their knowledge and well as encouraging the rest of the group to increase their arbitration knowledge. In my opinion the UAE branch committee should be commended for setting up this initiative and other branches would do well to replicate it.” Austen Smith – Mentee on the CIArb UAE Branch Committee’s Mentoring Program
Austen Smith is a Fellow of the Chartered Institute of Arbitrators. He acts as expert witness and is an Senior Associate with Hawkins. Austen can be contacted on Austen.smith@hawkins.ae
“For me, the mentoring programme has been an excellent opportunity to refresh my knowledge and share my experiences in arbitration with my group. It also allowed me to learn new aspects of arbitration from people acting in different roles to me. I found this very helpful and interesting. Our mentor brought her practical knowledge and experience into the process. She inspired the group and encouraged our development and provided useful guidance to us on our journey to becoming an arbitrator. Through the programme, I was able to expand my network of industry peers and develop friendships with others who are keen to be future arbitrators. I am thankful to the UAE CIArb branch for this opportunity, which I personally found to be invaluable.” Kate Blotskaya – Facilitator on the CIArb UAE Branch Committee’s Mentoring Program
Kate Blotskaya is a Member of the Chartered Institute of Arbitrators. She acts as a claim consultant and as assistant to Quantum experts. Kate is a Director in FTI Consulting Forensic and Litigation Consulting practice in Dubai and can be contacted on Kate.Blotskaya@fticonsulting.com.
“We started the Mentorship Programme for the first time in the UAE and that was probably the best initiative that connected members from different background and level of experience on the same task.
Selection of great mentors was another success I am particularly proud of. They are leading us though all aspects of arbitral proceedings and are providing us with invaluable lessons that are hard to be found in the literature.
We have carefully created groups by mixing participants with different backgrounds in order to maximize the knowledge sharing and to provide different views for discussions.
The best thing from this programme for me is the opportunity to network with participants, share contacts, experience and literature and to learn practical steps in entering the Arbitration arena. Before this programme, it felt like an impenetrable circle of professionals. But now, it looks more as a group of friends and colleagues who enjoy working together.
Great interest of our members to participate in the Mentoring Scheme is another good sign and we will work together to enhance the quality of the Programme. I seize this opportunity to invite our members to express their interest to participate as mentors, facilitators or mentees in the next Mentoring cycle.“ Nebojsa Pavlovic – Mentoring Programme Coordinator and Committee Member of the CIArb UAE Branch
Nebojsa Pavlovic is a Fellow of the Chartered Institute of Arbitrators. He runs his claim consultancy company in the UAE and acts as delay and technical expert on infrastructure and industrial projects. Nebojsa can be contacted on Nebojsa.Pavlovic@adlitteramco.com
To be interviewed in future Newsletters, please contact our interviewer Katarzyna (Kasia) Halliday at khalliday@thinkbrg.com
CIArb membership demonstrates that a person has reached a high standard of excellence and proficiency when it comes to dispute avoidance and resolution and further signifies that they have a strong commitment to professionalism, esteemed values and integrity.
To obtain CIArb membership there are three main routes:
The Experienced Practitioner Route
This route is based on one’s professional experience in arbitration, construction adjudication or mediation. This route requires the candidates to provide details of their appointments or participation undertaken in a specific period that is commensurate to the knowledge and skills required by CIArb.
The experience required of candidates is:
10 years’ experience for Fellowship,
5 years’ experience for Membership and
6 months experience for Associate Membership
No experience required for Student Membership
If you would like to be assessed based on the Experienced Practitioner route, please contact Kasia Halliday at KHalliday@thinkbrg.com
Training Route
The training route allows candidates to qualify as a Fellow, Member and Associate by taking specific training courses and assessments. This route does not prescribe minimum years of experience.
If you would like to book any of our accelerated routes, or to find out about specific entry criteria, please contact Ali Al Ashbal at Ali.AlAshbal@turntown.com
Recognised Course Provider Route
This route allows an individual to become a member by taking a course with an external educational institution accredited by the CIArb leading to CIArb membership. As part of its accredited partner tier, CIArb operates a Recognised Course Providers (RCP) scheme under which educational institutions can apply to have their modules recognised for the CIArb membership purposes.
– 5 years’ experience – Latest CV – A schedule of appointments or participation in the last 5 years – Two (2) reference letters
– Zero experience – Completion of Module 1 training and assessment components on one of CIArb’s Pathways, OR Completion of CIArb’s Accelerated Route to Membership (ARM) Programme.
– 10 years’ experience – Knowledge of the law of obligations and evidence at first-degree level or Recognised equivalent, or an understanding of law relevant to your mediation practice or recognised equivalent.
– Zero experience – Completion of Module 2 and Module 3 on one of the CIArb’s Pathways, OR Completion of an Accelerated Route to Fellowship Course Completion of CIArb’s Diploma, Part 3
Student membership is completely free and open to anyone currently studying at a university or other higher education institute that is listed on CIArb’s Recognised Course Providers (RCPs).
CIArb UAE Branch News 