Leadership Message: August ’22

by Robert Sliwinski C.Arb FCIArb Chair of the CIArb UAE Branch   

I am honoured to be writing this message to you all having been elected as Chair of the CIArb UAE Branch at the AGM held in June 2022.  Thank you to the Committee for giving me this opportunity and I hope that this will be a very successful year for all of us. 

For those of you who I have not yet had the chance to meet in person and by way of background, I have over 40 years’ experience in the construction industry with particular emphasis on all forms of alternative dispute resolution.  

I moved to Dubai four years ago to further my arbitration practice and am now Counsel at Al Suwaidi & Co based in Business Bay whilst still sitting as an arbitrator and continuing to represent a variety of clients in all areas of arbitration and litigation.  I am also registered to practice in the DIFC and ADGM courts. 

I have very much enjoyed being a part of the organisation of the Institute and prior to leaving the UK, I was a member of the Thames Valley Branch for over 15 years serving on the committee and undertaking two three years terms as the Branch Chairman.   

As a CIArb approved trainer, I tutor on both domestic and international arbitration, mediation and adjudication for candidates worldwide.  I feel that this is a very important aspect of being part of the Institute and as a Chartered Arbitrator allowing me to pass on the knowledge I have gained from my time in practice. 

My involvement with the CIArb has increased over the years as I have served on and am now the Chair of the Panels Management Group that oversees the arbitrators, adjudicators and mediators appointment panels.  This allows me to interact with members worldwide to help ensure that CIArb’s high professional standards are maintained.   

Branch Activities 

2021 continued to be a difficult time for many and most activities had to remain online rather than in person.  However, the Branch did manage to hold two in person events during Dubai Arbitration Week in November 2021.   

The first being a panel discussion and reception where the topic under debate was whether construction disputes were likely to remain mainstream in 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 results: construction remains the arena with most ADR disputes and it is likely to remain that way in the near future.  This makes me realise that many industries do not utilise ADR as effectively as they could and we should continue to interact with all industries to show how ADR can be a real benefit to them. 

The second event of the week was the CIArb YMG annual global conference, which was being held in Dubai for the very first time.  The theme of 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.  

More information on both these events can be found at: https://www.ciarb.org/our-network/middle-east-subcontinent/uae/branch-information/ 

Events 

As to 2022 we have already held a variety of events, both online and in person, including: 

• A joint event with DIAC on how to get your first arbitral appointment 
• A joint event with the French Chapter on keeping your disputes in check 
• A webinar with the Qatar Branch on Mediation 
• An in person discussion and social  
• YMG held a very successful quiz night and social 

Looking forward to the rest of this year there are a number of events already confirmed, including: 

• Joint events with ADGM and ICC 
• The continuation of the  ‘How to’ series, the next one being on “How to get your first appointment as an arbitral secretary” 
• A joint event with the Iberian Chapter and DIAC 
• A mock arbitration for the students of BuiD 
• CIArb Dubai Arbitration Week Event 2022
• Young Members Group debate during Dubai Arbitration Week 2022 

Courses 

We are also organising a number of courses which include: 

• Introduction to International Arbitration – Online course organised by the Qatar branch 
• Module 1 – Law, Practice and Procedure of International Arbitration over 4 days starting in August and September 2022 
• Module 1 – Mediation is in the process of being organised and it is hoped that this will be available later this year 

Other Matters 

The Branch has been approached for their support on a number of other initiatives including support for Dubai’s bid to host the ICCA Conference in 2026, potential opportunities for members to act as interns in the DIFC Courts and assistance in providing training in arbitration to judges in the UAE and possibly throughout the GCC region.  All of these are worthwhile and it is hoped that our membership will be able to benefit from these in due course. 

2022 is also a CIArb Congress and Presidential Election year.  This is an event where branch chairs from all the regions have the opportunity to meet with the Institute’s Director General and other senior members of the leadership team and discuss future plans, ongoing issues and other matters concerning the running of the Institute.  It is also when the Election will take place for the next President.  I will provide further details on this as the year progresses. 

Finally 

I would like to thank all the current and departing committee members for their time and effort over the last year, which has not been easy for any of us.  In addition, I would like to welcome those new committee members who have joined us and I look forward to working with all of you for the advancement of all form of ADR in our region over the next year. 

Last but not least I would like to thank you, the members of the branch, for your support at our events and I look forward to meeting as many of you as possible over the next few months. 

Contact 

My contact details are below and please feel free to get in touch with any suggestions, ideas, concerns, etc that you may have and I will do my best to address them for you. 

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Robert Sliwinski is a Chartered Arbitrator, Fellow of the Chartered Institute of Arbitrators and Chair of the CIArb UAE Branch. Alongside sitting as arbitrator, Robert works as Counsel with at Al Suwaidi & Co and can be contacted on r.sliwinski@alsuwidi.ae. 

Editorial August 2022: Celebrating one year of the CIArb UAE Branch Newsletter. Join the Editorial team. New Committee 2022-2023

By Reshma Oogorah, FCIArb

With this 5^th edition of the CIArb UAE Branch newsletter, we are officially celebrating a year since its launch in July 2021. From its inception, more than 50 members have contributed to the newsletter. We have published dozens of member profiles and articles thus contributing to the thought leadership on current and hot topics in the UAE such as the new DIAC rules 2022, technology in arbitration, third party funding and in this month’s edition we have an article on space arbitration. With a mission to inspire and motivate our members in exploring the different pathways to building a career in alternative dispute resolution in the UAE, we probed into the career transitions and choices made by CIArb UAE Branch members’ from diverse backgrounds. We are now looking to expand the newsletter by including new features and columns. So, watch this space. 

In the first edition, we addressed the matter of diversity and inclusion and that remains a high priority on the Committee’s agenda. While we have an active committee with lots of ideas, we always like to hear from you, our members, to make sure that we are catering to your expectations when it comes to the branch’s events and activities. Also, if you would like to volunteer to be a part of the editorial team of the newsletter and contribute to our new features, please do reach out. 

As you may know, with the recent elections, we have five newly elected members on the CIArb UAE Branch Committee. Robert Silwinski, C.Arb FCIArb was elected as the new Chair and has shared his first leadership message in this role. For the first time, we have two vice chairs, Kasia Halliday, FCIArb for Dubai and Glenn Trueick, FCIArb for Abu Dhabi. Do not miss Kasia’s inspiring Know Your Committee interview. The new committee remains dedicated to serve our members and we invite you to contact designated role holders or any committee member with your queries and suggestions. 

With this, I leave you to enjoy the contributions of our branch members. Happy reading! 

Warmest regards,

Reshma Oogorah

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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 arbitration and 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.

Accomplishments & Past Events / August ’22

We take a look back at some of our accomplishments and events from the last few months as well as events organized by other branches. 

Accomplishments of CIArb UAE Branch 

On 30 May 2022, the CIArb UAE Branch welcomed 5 newly elected members to its committee for the term 2022-2025, notably: Sean Yates FCIArb, Zeina Obeid FCIArb, Eman Saeed MCIArb, Haitham Mokhtar Abdelaty MCIArb, and Sandra Eze MCIArb. 

At its first committee meeting on 07 June 2022, the new committee elected Robert Silwinski C.Arb FCIArb as the branch’s new Chair and two Vice Chairs, Kasia Halliday FCIArb for Dubai and Glenn Trueick FCIArb for Abu Dhabi. To know more, read the full announcement here: https://www.linkedin.com/feed/update/urn:li:activity:6945629309910794241 and here.

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On Thursday 16 June 2022, the CIArb Young Members Group (UAE Branch) successfully hosted its annual quiz night event ‘Let’s get quizzical’ for the CIArb members at Nezassausi in Downtown, Dubai. 

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Accomplishments of CIArb 

The Chartered Institute of Arbitrators (CIArb) and the Oman Commercial Arbitration Centre (OAC) signed a Memorandum of Understanding (MoU) to form a strategic alliance on 26 July 2022. The alliance affirms their joint commitment to create an even more positive environment for effective dispute resolution in Oman, through the provision of CIArb’s world-renowned training in international arbitration and seeks to increase awareness and understanding of the advantages of arbitration, as well as other forms of ADR, to members of the business and legal communities in Oman and the wider MENA region. The programme will also offer accelerated route courses to CIArb Membership and Fellowship.  Read the full announcement here: https://ciarb.org/news/ciarb-and-oac-sign-mou-to-promote-adr-in-oman-and-across-mena/  

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Newsworthy events 

Following the UK government’s consultation on increasing mediation in the civil justice system published on 25 July 2022, CIArb is developing a submission and invites members to contribute their viewpoints on the proposals. We are committed to representing the views of our members and strongly encourage you to take this opportunity to help shape our response. Full details here on how to share your viewpoints in the CIArb’s responses: https://www.ciarb.org/news/help-shape-ciarb-s-response-to-the-uk-government-s-mediation-proposals/  

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Catherine Dixon, CIArb’s Director General, was appointed by the The International Federation of Commercial Arbitration Institutions (IFCAI) to its Council on 8 June 2022. This is a testament to CIArb’s continued commitment to foster constructive and productive relationships with ADR institutions across the world, share knowledge and best practice in effective dispute resolution and strengthen the CIArb brand globally. Read the full announcement here: https://www.ciarb.org/news/catherine-dixon-ciarb-elected-to-ifcai-council/ 

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Lahore Arbitration Declaration ratified at CIArb Pakistan Branch, on 27 May 2022. The newly launched CIArb Pakistan Branch held its inaugural Conference on Judicial Perspectives on Domestic and International Arbitration in Pakistan. The conference covered topics including the role of ADR centers and commercial courts in increasing foreign investors’ confidence; ADR global perspectives, energy and power arbitration in Pakistan, standardization in arbitration practice, procedure and process; and dispute resolution, a client’s perspective. The conference also launched Pakistan’s first construction disputes report co-authored by the Chair and Vice Chair of the Branch. The conference culminated in the ratification of the Lahore Arbitration Declaration – a positive step towards embedding alternative dispute resolution in Pakistan. To read more: https://www.ciarb.org/news/lahore-arbitration-declaration-ratified-at-ciarb-pakistan-branch-launch/  

 

Member Profile: Maria Mazzawi FCIArb

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

A. I am a Senior Associate in Eversheds Sutherland’s Dubai-based Disputes and Litigation Management team and an active Arbitrator.  

My practice is focused on international commercial dispute resolution and more specifically, international commercial arbitration and technology disputes.   

I advise clients on potential disputes and represent them in existing proceedings.  I also act as project counsel in non-contentious transactional, advisory, and pre-dispute work contexts. 

I am an active member of the arbitration community in the UAE. I frequently speak at conferences and regularly contribute to various news and academic outlets.  

I joined Eversheds Sutherland’s Disputes team for the wealth of experience and exposure it offered, and for the opportunity to refocus my practice to commercial and TMT disputes.  The variety of clients and instructions has certainly made for incredible exposure.   

I was also attracted to this position for the genuine support offered by the Partners with respect to arbitral appointments. Many, if not most, of the Disputes Partners are active and very well-known arbitrators, so I was naturally keen on joining such a supportive environment.   

In mid-2020, I received my first arbitral appointment to act as Tribunal chair. I was nominated by two very experienced arbitrators, one of whom happened to have tutored me on one of my CIArb pathway courses – which was slightly intimidating. Thankfully, the arbitration went very well, and I have since received three other nominations.  

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

A. My interest in arbitration came about during my LLB. I then applied for the LLM at Queen Mary University’s International School of Arbitration, where I completed my LLM in international and comparative commercial and construction contracts and arbitration. 

I started my legal career in the disputes team of Al Tamimi & Co, in Jordan. I’m a trilingual civil law qualified lawyer by background.  In 2015, I moved to Dubai to join Pinsent Masons and spent the next five years working on complex commercial disputes, with a large proportion of these being construction arbitrations and related proceedings (including DABs and local litigations).    

Whilst I enjoyed the construction focus, I found my interest in technology disputes growing in parallel and I was keen to refocus my practice to include commercial and technology disputes in an equally challenging and educational environment.  

In March 2020, I joined Eversheds Sutherlands in Dubai. My practice has refocused to include an incredible variety of work and instructions relating to complex commercial and TMT disputes and sectors, both in contentious and non-contentious contexts.  The pace at which this sector is evolving and the intricacies inherent in this legal field make for incredibly interesting work! 

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

A. I was first introduced to CIArb during my time at Queen Mary University and joined as a member shortly after completing my LLM in 2011.   

After settling in Dubai, I made every effort to become an active member of the arbitration community. I attended as many CIArb events as I could and contributed regularly to online news/media outlets and journals.  I quickly learned that CIArb offered an invaluable networking and educational platform.   

In 2017, I decided to pursue my fellowship with CIArb. It was one of the best decisions I made for my career, as it was a great opportunity for hands-on but pressure-off learning from seasoned practitioners in the region.  

I remain an active member of the CIArb community today. I am an avid advocate for what the Institute stands for, and very outspoken on the support this community offers.  

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

A. As an arbitrator, my biggest achievement to date is getting my first arbitral appointment and a few after that. Without having first completed my fellowship with CIArb, I don’t think I would have had the skills or confidence to accept my first appointment.  

As a private practice practitioner, I’m very honoured to have recently been listed as one of the leading private practice arbitration practitioners in the Middle East in The Legal 500 Private Practice 2022 Arbitration Powerlist.     

Another one of my favourite achievements is speaking at the joint DIAC/CIARB event in March 2022, titled ‘How to get your first appointment as an arbitrator?’, a high profile event which attracted hundreds of in-person and online attendees.  This was a particularly meaningful event for me because I remember attending DIAC and CIArb events on this very topic myself a little over 7 years ago, as an aspiring Arbitrator. So, to have been asked to participate as a speaker and active arbitrator in this event, alongside those panellists (one of whom was also one of my CIArb tutors) was a very special honour and very meaningful to me. 

Q. What are your aspirations for the future?

A. I aspire to build on and expand my arbitrator experience, whilst continuing working in private practice.  I would hope to continue making an active effort in participating positively in the local and regional arbitration community. It’s a constant balancing act between trying to service private practice clients, getting as much exposure to a variety of work as you can, whilst also working on the parallel aspiration of becoming a well-established arbitrator. 

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

A. The most important advice to give would be to invest in your skillset as much as possible. Learning should never stop.  As a private practice practitioner, it’s a continuous learning curve and you always have to stay on top of legal developments, market practices, and trends. As an arbitrator, you simply cannot afford not to have the skills necessary to undertake this mandate; your knowledge and skillset are what you are offering to the parties and the reasons for your appointment. 

Network as much as you can but do it with sincerity. Whilst it is obviously important to get your name out there and expand your contacts, it is also important to remember that the goal of networking is to build meaningful relationships over time, and in doing so, building your reputation within the market and more importantly your credibility.  

Contribution to the community is also key, and one way of doing that is by writing articles and contributing a view to the issue or update presented.  

Lastly, seek mentorship where you can. If this isn’t easily accessible to you, you can seek this from within the community. Over the years I found myself drawing on guidance and inspiration from a number of well-established practitioners and peers instead of one mentor, even if entirely informally.  

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Maria Mazzawi is a Fellow of the Chartered Institute of Arbitrators, a practising dispute resolution lawyer, and active arbitrator. She may be contacted on mariamazzawi@eversheds-sutherland.com

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

Member Profile: Jonathan Bradbury MCIArb

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

A. I am a Senior Managing Consultant for Berkeley Research Group’s Construction and Government Contracting practice. I support named Quantum Experts in international arbitration, on quantity surveying matters.

I have had a keen interest in this type of work since starting my career in construction as a Quantity Surveyor for an international main contractor that prioritised risk management and a commercial return. Throughout my contracting experience, I have worked on unique and complex projects.

Pre-2020 I witnessed an increasing number of under-capitalised contractors and a shortage of skills. As economic pressure and challenging market conditions became palpable, I considered how likely dispute resolution would become ‘part and parcel’ of a project’s execution as project delays and cost overruns increased. I wanted to experience how disputes are dealt with in arbitration and learn if my profession as a Quantity Surveyor could contribute to alternative dispute resolution and how it could continue to be intellectually challenging.

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

A. In my previous role, I was a senior member of a Contractor’s commercial team. I was responsible for the Contractor’s cost report and forecast. I also had ownership of the procurement process for major domestic subcontracts and supported the Employer in their procurement of major provisional sums.

Throughout the procurement process, I would develop my own detailed knowledge and understanding of a scope of works, commercial budgets, market rates, prices and technical execution of construction work. This was the foundation to maintaining an accurate and up to date commercial report and forecast, which included many moving parts; monthly valuation of construction works, productivity analysis of direct works, valuation of risk and opportunity, and a forecast of the costs to completion, along with anticipated returns and contributions.

My last project experienced challenges and because of my detailed knowledge of the Contractors costs, I was asked to value claims and assist the third-party consultants. I became more interested in pursuing a career in construction arbitration and in 2020 I was offered the opportunity to work for BRG..   

When deciding to take-the-leap into dispute consultancy, I could not have expected the pace that I would gain ‘inside the ropes’ experience of high value and complex disputes, working alongside and opposite, prominent Quantum Experts.

I am fortunate to be able to develop and thrive in an environment that pushes you to produce work to the highest standards, emphasising accuracy and attention to detail.

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

A. My career is linked very closely with the CIArb; working for BRG in International Arbitration and providing quantum expert services.

I joined the CIArb at the earliest opportunity and I became a member in February 2022 after completing Module 1 International Arbitration. When I started at BRG, I wanted to accelerate my learning and expand my knowledge of International Arbitration outside of my day-to-day expert work.

I was encouraged by my colleagues, who raised my awareness about the benefits of being a member of the CIArb, and how it can provide access to a network of professionals, information and industry resources.

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 to date is being able to realise some of my ambitions earlier than I thought possible. Where I have had ambitions to work for a certain company, work on a project, to travel, enjoy work and keep learning along the way, I have been able to achieve them and mostly before I turned 30.

Most recently, I wanted to increase my responsibility and participation in arbitration proceedings and had the opportunity to realise this ambition, where I have assisted the Quantum Expert on a large, complex commission. Throughout the commission I was responsible for various heads of claim that accounted for a significant value of the dispute. I also attended the Hearing as one of two named assistants. I was pleased to be able to provide support in person, to the Expert and the Legal team throughout the Hearing process. Completing the CIArb training gave me a better understanding of the latter stages of arbitration procedure before I experienced this in person. I was able to draft and prepare valuations with a better understanding of how they would be served and scrutinised. It helped me present my work in a way that clients and colleagues trusted and were able to use to their satisfaction

Q. What are your aspirations for the future?

A. In the short term I will complete Module 2 of International Arbitration with the CIArb. The virtual tutorials are engaging, and I have found them to add a ‘real life’ context to the market in which my firm operates.

Since my Hearing experience I would like to kick on with my professional development in construction disputes at BRG, whilst continuing to work to the best of my ability and highest standards. I would like to progress as far as I am able in expert witness consultancy.

I would also like to develop and expand my network of ADR and industry professionals where I would relish an opportunity to help clients and share my expertise.

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

A. It is a demanding and challenging line of work that comes with different kinds of pressure. Aside from the obvious ‘work hard, be enthusiastic and willing’, I think having confidence in your ability and finding extra determination and resilience can help you make the most of any opportunity or circumstance.

When I started out, one of my commercial managers would tell me that “it’s the experience that counts” and “patience and persistence will pay off”. I can now fully appreciate what he meant and would like to add to this; don’t be afraid to step out of your comfort zone, be selective and enjoy the process.

I have found good and bad experience to be invaluable, and it is important to recognise the opportunity, seize it, remain positive and learn as much as you can.

  

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Jonathan Bradbury, MCIArb is a Member of the Chartered Institute of Arbitrators. He is a Senior Managing Consultant at Berkley Research Group and may be contacted on JBradbury@thinkbrg.com

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

Member Profile: Stephen A Hibbert FCIArb

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

A. Currently, I am established in Dubai as an independent arbitrator and mediator. I established my practice in Dubai in 2021. Prior to that, I spent 8+ years as the General Counsel of the Qatar Railways Company, in Doha. 

I initially qualified as a Civil & Structural Engineer. I was involved in the design and construction of power stations and related work in New South Wales (NSW), together with various aluminium smelters in Australia. 

Whilst working in the design office and on-site, I analysed and assessed contractor claims. At the time, many of my engineering colleagues were undertaking an MBA. The claims assessment work spurned my interest in construction contracts. Without any preconceived notion of where it all might lead, I enrolled for a degree in law and the rest is, as they say, history. 

In 1983, I transferred to law, in Sydney, specializing as a construction and disputes lawyer.  

I was in private practice and in-house as a solicitor and counsel for over 35 years working on major projects and disputes across Australia, Asia and the Middle East, before establishing in Dubai in 2021. 

Over the years, I have sat as arbitrator many times, and assisted numerous companies to resolve their disputes via mediation.  

In my current position, I continue to be connected to major projects, commercial disputes and arbitration in this region. 

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

A. This is now my 15th year in the Middle East.  I worked with major local law firms in Oman, Abu Dhabi and Qatar prior to joining Qatar Rail.  

With the conclusion of the Doha Metro project in 2019, and it going into full operations in 2020, I was keen to return to arbitration, to re-engage with mediating commercial disputes in the projects sector and participating in Dispute Adjudication Boards (“DABs”. For me, it was a natural progression to remain in the region and to put into practice the immense learning experience the Doha Metro project, gave me, in particular. 

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

A. I became a member of the CIArb in Australia when the Chapter was first established there around 1995. I was a member of the CIArb UAE Branch from 2008 to 2012, of the Qatari Branch from 2012 to 2021 and now back to the UAE branch.  The CIArb brought with it access for local Australian professionals, the world of international arbitration – both in terms of cases, and practice and procedure. It was a very welcome addition to the market. It immediately helped all arbitration professionals to expand their opportunities. Indeed, it was the establishment of professional bodies like the CIArb in regions like Australia that was the forerunner of the global expansions of engineering and law firms in the years to come. 

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

A. Probably, my biggest professional achievement was the General Counsel role at the Qatar Railways Company, from 2012 to 2020 The project commenced with 35 members of staff and in 2019 the project manpower count exceeded 84,000. It was a substantial project, with 140km of underground tunnels under Doha and 37 metro stations, 31 of which were also underground.  

The size and the complexity of it required every document and contract to be drafted specifically for the project, including laws to enable the construction and operation of the project. The project was brought to completion on time and went into full operation in 2020, which, from any perspective, is a world class outcome. 

 In parallel to the implementation of the country-wide project programmes which brought a focus on dispute management in construction projects, the CIArb Qatar branch became very active and played a leading role in advocating for the modernization of Qatar’s arbitration laws and practice. 

 I was an active member of the local branch and we were successful in getting a number of senior Qatari lawyers and even judges to come to many of our functions. 

Q. What are your aspirations for the future?

A. In my role as an independent arbitrator and mediator, I am looking to contribute to the regional activities in commercial arbitration and mediation, and support the use of DABs in the projects sector in UAE.  

My professional objectives at present are first to build on the solid ground we established in Qatar and to build better links between the chapters, particularly regarding the use of    dispute boards  in the region. The UAE has had and is having a very good experience with DABs and it has a good story to tell to our colleagues in Qatar. 

I am keen to support the use of DABs. Based on my experience in other jurisdictions, particularly in Australia, once an employer receives a number of good experiences from DABs, the take-up of the DAB model on projects is very high. DABs are present in the UAE today. But most commonly they are struck out of many contracts for major projects. 

In my experience, the DAB process of itself, often brings about the settlement or resolution of construction disputes, even before DAB decisions are published.  

Likewise, mediation, is not always the first choice of employers in the Middle East, for a range of reasons. But surprisingly, I have found that those from government employers do approach mediations with a keenness to achieve a result.  So, where the opportunity is available you will hear me advocating a mediation session before all the formalities and costs of arbitration kick in. 

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

A.  First, lay a solid foundation of knowledge. Arbitration supports a wide variety of professional backgrounds. Based on your primary training, it is important that an aspiring arbitrator invests time and effort to learn and absorb the practice of arbitration. The CIArb is probably the best starting point. Whether it be the variety of courses or the process of grading, undertake them all and immerse yourself in the very challenging, and rewarding world of arbitration.   

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Stephen A Hibbert is a Fellow of the Chartered Institute of Arbitrators. He is an independent arbitrator and mediator and may be contacted on  SAH@stephenahibbert.com.

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

Know your Committee: Kasia Halliday FCIArb

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

A. I am an Associate Director at Berkeley Research Group, providing quantum expert assistance to clients and counsel. I am also a CIArb UAE Branch Committee Member and act as the Vice-Chair and Training & Education Officer. 

I started my career as a Chartered Quantity Surveyor in 2004 in the UK. In the early stage of my career, I worked predominately on pre-contract phases of construction projects and often had opportunities to work with legal teams on contract drafting and contract negotiation. The experience gained in the construction phase of projects and the mechanisms available to parties to resolve conflicts became a driving factor in my career. I believe that my passion for delivering complex projects opened up some incredible opportunities, such as moving to UAE and transitioning to contract services, dispute resolution and my current quantum expert role.    

As my career continues to progress, my objectives are now focused on being appointed as a quantum expert witness on a regular basis and undertaking the required learning & development activities to support my career objectives. However, I also believe contributing back to the construction community to be a crucial part of my career progression. Looking back at my career to date, I cannot deny that my drive and determination to succeed have been reinforced by the support of some great mentors who inspired my passion and enthusiasm for this profession further. I want to contribute back to that community, which is one of the key reasons why I decided to run in the election for the Committee. 

My journey with CIArb started in my first year of LLM studies. Since joining the CIArb, I have seen first-hand the outstanding knowledge, resources and support provided by the CIArb community to its members. With my well-rounded experience in quantity surveying and successful transition in to contract services and dispute resolution, I believed I would be able to contribute to the CIArb’s core values of promoting knowledge and use of alternative dispute resolution as well as driving diversity and inclusion of professionals from all backgrounds; including professionals coming from technical backgrounds – like myself.     

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

A. It has been an incredibly rewarding journey! The reason why I decided to run in the election for the Committee, was to meet and work with likeminded individuals to make a difference in our community. I have been very active on the Committee, taking on roles and tasks where I believed my experience will allow me to make an impact.    

In the first couple of months since being elected to the Committee, I volunteered to take the role of Education and Training Officer. Education and training are fundamental part of each Branch’s service offering. The Institute’s initial objective was and remains, “to promote and facilitate worldwide the determination of disputes by arbitration and alternative means of private dispute resolution other than resolution by the court”. 

It’s a challenging role. Organizing local training courses involves quite a bit of planning, liaising with CIArb’s Headquarters to ensure our courses run in alignment with central assessment dates, liaising with tutors and course administrators, as well as marketing. However, as much as it is challenging, it is rewarding being able to contribute to the Institute’s core values of promoting knowledge and best standards as well as driving diversity in dispute resolution.   

I have also volunteered to contribute to the CIArb quarterly newsletter. For the past year I have been conducting interviews with our local members for the Members’ Profiles section. This section was my suggestion. I wanted to introduce CIArb’s members across different backgrounds and stages of their career to the wider industry. My aim for the interviews was twofold, One – having reviewed the Institute members’ demographics, I wanted to highlight the diversity within the community and how it can benefit the parties in a dispute resolution process and enhance the system overall, and Two – It was to highlight that although career transition can be seen as challenging, with the right drive, commitment and support, it is possible at any point. The Members’ Profiles section was to introduce a form of a passive-mentorship / guidance that would inspire, perhaps encourage other members to pursue their professional goals by reading about career progression and any achievements that led the featured members to their current role and contributed to their professional successes.  

More recently, I decided to stand in the election for the position of the Vice-Chair and have been elected. With my experience in the Committee generally and as the E&T officer, I believe that I can provide valuable support to our newly elected Chair, Robert Sliwinski and local members.    

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

A. The demographic of the CIArb membership is changing, attracting more women and people like myself, who transitioned from different careers, and for whom English is not the first language. I hope to be able to contribute to CIArb’s continued success of driving gender and demographic diversity in dispute resolution.  

As part of this drive, I am working with the UAE Branch to implement CIArb courses in Arabic. We are planning to deliver ‘Introduction to International Arbitration’ course in Arabic later this year.    

I would also like to see more female tutors on our local Approved Faculty List, and I am glad to say that I have been approached by several female professionals who are interested in training for those roles.  

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

A. The CIArb strategy 2021-2023 ties in with fundamental requirements of a dispute resolution process, allowing parties to be represented by the most suitable person, rather than from a particular gender and / or demographic.  

The work carried out by the UAE Branch in raising and protecting CIArb’s profile whilst promoting diversity through bridging cultural and gender differences reflects my personal values and complements the CIArb’s Strategic Aim to develop an inclusive global community of diverse dispute resolvers. 

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. Since joining the Committee, I have had opportunities to meet and work with some great professionals, who continue to inspire my passion and enthusiasm to contribute to this community further. To be part of the Committee and contribute to the Committee’s work, has been an incredible experience and I would wholeheartedly recommend it!  

There are numerous ways to get involved, whether through attending or contributing to any of our events and training courses or as simple as contributing to the newsletter. All Committee Members are very welcoming and open, so reach out, either through the website, LinkedIn page or during any of the events.   

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Kasia Halliday is a Fellow of the Chartered Institute of Arbitrators, Vice Chair of the CIArb UAE Branch – Dubai and its Education and Training Officer. She is an Associate Director at BRG and can be contacted on KHalliday@thinkbrg.com   

Suspension and Termination Claims: Issues & Complexities

by John Boultwood ACIArb 

With the consequential impact of COVID now manifesting in commercial matters being taken to dispute, a common feature of such projects is a slow rate of progress, suspension and even termination of projects.   

This article considers the competing positions that often arise from the circumstances of projects that run into such difficulties including the usual features of evaluation and ascertaining such claims. 

Suspension is a complex subject that often requires a full understanding of how the contract operates and what effect suspension has on either Party to a contract. The FIDIC 1999 Red Book (“FIDIC 99”) is typically used here in the Middle East and contains various clauses on how suspension is implemented and subsequently valued.  

The terms of suspension under the Contract often result in the Parties having different views of the purpose and ambit of the suspension. FIDIC 99 Clause 8.8 deals with suspension either by the Contractor or the Employer. Whether the Contractor or Employer suspends works, suspension claims are likely to include the following issues: 

• Where the project is about to be suspended, the Parties need to be clear on the scope of the suspension and what elements of the project require the Contractor to maintain resources and perform any ongoing duties. 

• During the suspension, the Parties would be well served to monitor the resources being deployed and to flag any issues arising in the suspension that may have implications regarding any restart of the works. This can be sought through effective project management dialogue and recording of weekly meetings. 

• Upon lifting the suspension, the parties will seek to agree the time and cost consequences and to review any interim payments that have been made during the suspension period.  

When a project is suspended, the correspondence during the suspension period is usually unclear regarding the actual or reduced level of resources to be maintained during the suspension period. This can result in the Parties having different views as to whether the Main Contractor was to maintain a full resource and be prepared to resume at any time, or whether the suspension was indefinite with lesser safeguarding duties and a remobilisation. 

Consequently, this can result in conflicting opinions of the parties on the resources deployed and valuation of the level of resources that can be valued as part of the suspension instruction. Where an element of the works is not subject to the suspension, it may also be questionable whether that element of the works is subject to a progress valuation under the original value of works or valued as part of the suspension costs. If the Employer asserts that the Contractor was in culpable delay at the time of suspension, any work fronts where the Contractor can recoup schedule losses may also be a topic for evaluation, concerning responsibility and time and cost consequences. 

The below conceptual diagram illustrates the different stages of suspension through the project lifecycle. The green represents the works progressing as usual, the amber illustrates the period both before and after suspension and the red illustrates the usual uncertainty surrounding the suspension of works. The suspension period is where communication between the Employer and the Contractor is of paramount importance.  

Conceptual diagram for the suspension of works​

Depending upon the duration of the suspension there may be a trade-off decision between the costs of demobilising, cancelling rental agreements and remobilising equipment versus the cost of maintaining the status quo through the suspended period. The lifting of the suspension may give rise to issues regarding resource planning for materials in transit and the remobilisation of personnel and equipment. 

Valuation will depend upon the ambit of the suspension instruction, its duration, and the resources that are subject to the suspension. The valuation principles under the Contract need to be examined to consider whether the valuation requires a cost-based or rate-based valuation. This can provide a significant range of valuations, particularly where large equipment or plant is retained on the project and whether the Contractor could have deployed that equipment at market rates elsewhere. 

It is beneficial that the allocation of resources and any continuing scope is agreed upfront and to keep weekly records of the resourcing during the suspension period. Ideally, costs should be kept by reference to cost records compiled weekly. 

Suspension often foreshadows the triggering of a termination.   

Termination is primarily a contractual mechanism, whereby an Employer or a Contractor asserts its contractual right to give notice of termination under the Contract. Under FIDIC 99, the Contractor may terminate under clause 16.2 (Termination by the Contractor) and the Employer may terminate under clause 15.2 (Termination for Contractor’s Default) or clause 15.5 (Termination for Employer’s Convenience).  Depending upon the Contract the valuation mechanisms that flow from the parties, termination may vary and often the termination provisions are subject to special conditions or amendment.   

Termination disputes always turn on the facts, which can cause the basis of termination to be challenged, matters to become complex and prolong project delivery; it is common to see allegations of wrongful termination and counterclaims. 

A common feature of termination is the valuation of the physical value of work done reflective of the progress at the point of triggering termination. This depends upon the records of the works completed by the Main Contractor and its Subcontractors as well as the supply of any materials procured or subject to partial procurement at the date of termination. More fundamentally, the Employer may take a position with regard to overpayment and value for money. 

In respect of valuing termination, this involves verifying the value of any work done, encompassing progress in procurement and the direct consequences of termination. Different valuations are proffered by Contractors and Employers. The Contractor’s valuation at termination will seek recompense for any direct costs and loss of opportunity arising out of the termination, whereas the Employer’s valuation will rely upon the tangible benefits gained by the Contractors delivered work, the additional costs post-termination, as well as the re-tendering and completion value to complete the remaining post termination scope (i.e., the balance of the works to be undertaken post-termination). 

In addition to justifiable grounds for termination there are many factors to consider for both the Employer and Contractor before issuing a notice of termination. The Contractor should ensure that its termination valuation is supported with a backup audit trail, indicating the progress of works at the time of termination and further the Employer would need to consider the follow-on works and whether it employs and subsequently onboards the incumbent Sub-Contractors to the new Main Contractor completing the works or retenders a relet for the balance of the works.  Fundamentally, any claim for extra over costs to the Employer need to be demonstrably arising from a like for like comparison of the balance of works left at termination. 

Aside from the assessment of the value of work done by the Contractor at termination, the contractor may also claim costs for the demobilization of significant plant and equipment that was planned for the terminated project and for any ongoing liabilities.  

Regarding the demobilisation of plant and equipment that cannot readily be deployed elsewhere, there could be a claim for extended durations of rental charges. Again, this would all have to be demonstrable and auditable cost.  Connected to this is the question of what is a reasonable time for accrued ongoing post termination costs.   

Regarding Contractor ongoing liabilities, the Contractor may have to negotiate and settle ongoing agreements within its supply chain. The Contractor will have to address any claims that existed prior to and/or arose from the termination. Records of any negotiations and settlements will be important to demonstrate that commitments were sensibly closed out, particularly if these are included as part of the Main Contractor’s direct costs of termination and to be passed on to the Employer.   

In a termination situation, the Employer will need to make arrangements to complete the works and may claim for any costs this incurs. If the Employer wishes to make such a claim, it is important that the Employer can provide an audit trail of the incomplete scope of the works at termination.  The topic of post termination variations will give rise to a question of whether such variations would have been a corresponding variation had the original Contractor completed the works.   

However, the Employer should be cautious when placing the follow-on works to ensure that the balance of the completion works is demonstrably linked to the value of the work done at termination. The terminated Contractor will inevitably argue any concerns over like for like scope for any follow-on contractors and so the Employer should ensure that follow on costs are mitigated where possible and that any future variations are separated from a cost to complete claim against the previous Contractor.  

The below conceptual diagram illustrates the phases of termination from terminating the existing Contractor and re-engaging a new contractor to complete the works.  

Conceptual diagram for the termination of works​

 

The author notes that the above is a general guide to issues which in his experience give rise to significant valuation differences and that the parties to a Contract should before suspending or terminating have a weathered eye on the range of issues that are likely to follow. 

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John Boultwood is an Associate of the Chartered Institute of Arbitrators. He is a Quantum Expert Witness, the Managing Director of Boultwood + Associates and can be contacted on john.boultwood@boultwoodassociates.com  

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

To submit an article for publication please contact our general editor Reshma Oogorah.

Space Arbitration as the Forum of Choice for the Space Industry

by Mohamed Amara MCIArb and Laura Yvonne Zielinski

The space industry is growing and with this growth comes a higher risk of disputes. The legal community should be prepared to offer efficient dispute resolution mechanisms to the users of outer space and space arbitration has an important role to play in this context.  

The first half of 2022 has seen a stark increase in the presence of outer space in our conversations. Newspapers such as Le Monde and the Wall Street Journal now regularly report on space developments and threats, and as a consequence, in the legal world, space law is increasingly seen as less of a niche subject and more as a legal branch of interest to the broader community. One of the legal topics that is being discussed concerns dispute settlement mechanisms that are available to the space industry. The underlying thought is that the growth of the space industry will sooner or later result in space disputes and that the legal community should be prepared to offer efficient mechanisms to solve them. So what are the dispute resolution mechanisms available to the space industry in the UAE and beyond? 

Domestic Litigation 

In theory, space disputes, like any other disputes, could be solved by domestic litigation. However, there are doubts about whether national courts are indeed the best forum for the space industry. This is because space activities are generally highly technical, international and often confidential, and domestic courts are not always prepared to adequately address the needs resulting from these specific characteristics. In addition to practical questions regarding for example the language of the proceedings where two parties from different jurisdictions are involved, the main shortcomings of domestic courts with regard to space disputes are considered to be the lack of expert knowledge of the space industry in domestic judges, and the public nature of national litigation that fails to take into account the need for protection of sensitive space technology.  

The Dubai Courts of Space 

In 2021, the DIFC Courts have created the Courts of Space to address the issues set out above. In this regard, the Dubai Space Courts offer proceedings in English and apply the common law approach. The DIFC Courts are a forum of choice, meaning that they can be chosen by parties all around the world and their judgments are honored by other common law jurisdictions. Finally and most importantly, the judges of the Space Courts are trained in space law and the outer space industry to offer space users the industry-specific dispute settlement they require.  

International Arbitration 

Beyond the Dubai Courts of Space, it is international arbitration that might present the best option for the space community. Like the Courts of Space, arbitration can be chosen by parties in their (space) contracts. Arbitration offers as its main advantage that it allows parties to a dispute to select their arbitrators and therefore allows parties to a space dispute to choose arbitrators who are familiar with the space industry and can well understand and judge a space dispute before them. In addition, international arbitration is also uniquely placed to offer parties the level of confidentiality required by a specific dispute as, if necessary, even the existence of an arbitration proceeding can be kept confidential. 

These advantages are well known and many space contracts already contain arbitration clauses. For example, the European Space Agency provides for arbitration in Clause 35(2) of its General Clauses and Conditions for ESA Contracts (Regulations of the European Space Agency: General Clauses and Conditions for ESA Contracts, ESA/REG/002, revised on 5 July 2019) and arbitration clauses also seem to be routinely included into commercial space contracts by companies such as SpaceX, Avanti, Boeing, Airbus and Arianespace (Rachael O’Grady, “Dispute Resolution in the Commercial Space Age: Are All Space-Farers Adequately Catered For?”, ICC Dispute Resolution Bulletin, Issue 3, 2021, p. 55). A study undertaken by Vivasat Dadwal and Madeleine Mcdonald confirmed that international arbitration is the preferred mechanism by both State and non-State actors in the resolution of publicly-known space-related disputes, especially in the satellite industry (Viva Dadwal, Madeleine Mcdonald, “Arbitration of Space-Related Disputes: Case Trends and Analysis”, presented at the 71st International Astronautical Congress in October 2020).  

What is interesting is that the arbitration rules chosen by the parties so far seem to have been generic arbitration rules such as those of the International Court of Arbitration of the International Chamber of Commerce or the London Court of International Arbitration. And this in spite of the existence of sector-specific arbitration rules such as those published by the Permanent Court of Arbitration.  

The PCA Outer Space Rules 

In 2011, the Permanent Court of Arbitration, in collaboration with an expert group of 13 leading experts in aerospace law, developed and published the specifically-tailored Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.  

These rules are based on the well-known UNCITRAL arbitration rules but contain various adaptations to better suit the requirements of the space industry. For example, under Articles 10(4) and 29(7), the Secretary-General of the Permanent Court of Arbitration maintains a list respectively of arbitrators and experts with specialized knowledge of the subject matter at issue. Article 17(6) allows the parties to a dispute to apply to have certain information classified as confidential and Article 17(8) provides for the possibility of appointing a ‘confidentiality adviser’ to report to the tribunal on specific issues without disclosing the confidential information on which the report is based. Finally, according to Article 27(4), the tribunal may request the parties to provide a non-technical document summarizing and explaining the background to any scientific, technical or other specialized information which the arbitral tribunal considers to be necessary.  

The PCA Outer Space Rules are available to both States and public entities and private parties and by choosing them, the parties waive their right to immunity from jurisdiction. Like all international arbitration awards, awards rendered under the PCA Outer Space Rules are final and binding and enforceable internationally in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted on 10 June 1958. 

As far as publicly known, the PCA Outer Space Rules have not yet been used in practice. However, “[a]s the size and sophistication of the market develops, it seems likely that users will gravitate toward the [PCA Outer Space Rules], which were prepared with their specific needs in mind.” [Evgeniya Goriatscheba, Mikhail Batsura, “Specialized Arbitration Rules for Disputes Relating to Outer Space Activities”, Arbitration.ru, March-April 2021, No. 2(26), p. 23.] 

Conclusion 

When it comes to discussions about dispute settlement mechanisms for the space industry, the question is sometimes raised as to whether there is a need for an international space court or whether any other new dispute settlement mechanisms need to be created in anticipation of an expected increase in space disputes. It seems however that this is not necessary. There are already dispute resolution mechanisms specifically tailored for the space industry. Rather than creating new institutions, it is important to raise awareness of the mechanisms that exist already to make sure that the space industry takes advantage of them to efficiently address any disputes that might arise in the coming years. 

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Mohamed Amara  MCIArb is a member of the Chartered Institute of Arbitrators and of the International Institute of Space Law (IISL). He sits as arbitrator, is an accredited mediator and is the General Counsel for the Federal Geographic Information Center. He can be contacted on m.amara@amarapartners.ae. 

Laura Yvonne Zielinski is the Founder and President of the Space Arbitration Association and an associate at Holland & Knight in Mexico City. She can be contacted on laura.zielinski@space-arbitration.com.  

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

To submit an article for publication please contact our general editor Reshma Oogorah.

Regulation of TPF in the MENA Region: New DIAC Rules 2022

by Sima Ghaffari MCIArb 

In light of the increased involvement of Third Party Funding in international arbitration, it is apposite to explore the regulation of TPF in Middle Eastern jurisdictions. This article will highlight the approach of the new DIAC Rules 2022 to the topical issue of Third Party Funding in arbitration.  

One of the most important criticisms of arbitration is its ever-increasing costs. As such, the use of financing options in the arbitration arena continues to gain momentum.  Third Party Funding (“TPF”) can remove the arbitration costs off the balance sheet of the funded parties and enable them to pursue a meritorious claim. The COVID-19 pandemic has also accelerated the future of TPF. There has been a growing trend toward the regulation of TPF, as a tool to improve access to justice for under-resourced parties. Therefore, many jurisdictions have liberalized TPF and adopted pro-TPF stances in recent years. Likewise, many leading arbitral institutions including ICC, SIAC, ICSID and HKIAC have started to modernize their arbitration rules and regulate TPF. 

In a similar vein, TPF found an echo in the updated rules of the Dubai International Arbitration Center (“DIAC”) which came into effect on 21 March 2022 (“DIAC Rules 2022”). This can be considered a step forward in the efficient resolution of complex and high-value disputes, in particular, in the construction and energy sectors. Taking such statements as a starting point, this article will discuss the efficiency of the new TPF provisions under the DIAC Rules 2022. It will also briefly highlight the position of TPF in the MENA Region (“Region”). 

Third Party Funding through the Lens of the DIAC Rules 2022 

The new version of DIAC Rules apply to arbitrations which commence on or after 21 March 2022. The modern archetype of these rules can place the DIAC at the forefront in terms of efficiency in institutionalized arbitration in the MENA Region. The key features of the new DIAC Rules include the incorporation of multiple party and multi-contract arbitration¹, joinder and consolidation, TPF, expedited proceedings, appointment of an emergency arbitrator etc. The previous version of the DIAC Rules (2007)² was silent on the regulation of the use of TPF in arbitrations conducted under the DIAC Rules. 

Providing the definition of TPF is still a tricky issue³. DIAC, in its article 1.1, shed some light on what qualifies as TPF and defines third party funding arrangement as “an arrangement between an independent third party (whether an individual or body corporate) and one of the parties to the arbitration which confers on that third party an economic benefit which is linked to the outcome of the arbitration and may involve the receipt of a share of the proceeds of any award”. 

The involvement of the funder may endanger the impartiality and independence of arbitrators as there is the risk of conflict of interest arising from the relationships between third party funders and arbitrators. For instance, an arbitrator may be the director of the funder or the funder may be involved in two cases where the same member of the Tribunal is acting as counsel or arbitrator. Hence, one could argue that it would be prudent for a Tribunal to be appropriately informed of the presence of funders, to avoid any adverse effect fromthe potential direct and/or indirect relationships between funders and arbitrators on its impartiality and independence.Article 22 of the DIAC Rules deals with the issues related to disclosure obligations and adverse costs liability. It provides a disclosure regime for the purpose of assessing conflicts of interest that would arise out of relationships between arbitrators, funders and counsels. DIAC imposes an obligation to declare the existence of TPF and effectively addresses the correlation between TPF arrangements and disclosure. The partial or limited disclosure prescribed in the DIAC Rules 2022 is aligned with the latest updates to the arbitration rules of leading institutions like the ICC⁴. 

Article 22 of the DIAC Rules 2022 addresses the obligation to disclose TPF at different stages of an arbitration: prior to and after the constitution of the Tribunal. Before the constitution of the Tribunal, parties must promptly disclose the existence of TPF arrangement “together with details of the identity of the funder, and whether or not the funder has committed to an adverse costs liability”.  

Neither DIAC nor any other institutions whose rules I reviewed including ICC and VIAC⁵ specify what exactly the “identity” of the funder means. The new ICSID Rules, however, clearly provides  that  the “name and address” of funders shall be disclosed through a written notice⁶. Facilitating the assessment of potential conflicts in this way can help to better preserve the overall integrity of arbitration. Likely due to confidentiality concerns, Article 22 of the DIAC Rules 2022 does not extend the scope of the disclosure obligation to further information such as the contractual document with regard to the funding agreement. 

As for funding arrangements made after the constitution of the Tribunal, Article 44.2 of the DIAC Rules 2022 prohibits parties from entering into a TPF arrangement  “if the consequences of that arrangement will or may give rise to a conflict of interest between the third-party funder and any member of the Tribunal”. The disclosure obligation of the new DIAC Rules (for the purpose of conflicts analysis) can be considered a significant step in ensuring the enforceability of arbitral awards.  

Third party funders may also appreciate these innovations as disclosure would better protect the investment of funders by avoiding conflicts of interest. 

Another procedural query related to TPF is the impact of TPF on allocation of costs. One may argue that the mere fact that a party seeking costs is funded by a funder does not suffice to deny the recovery of costs. Article 22.3 of the DIAC Rules 2022 provides that “The Tribunal may take into account the existence of any third party adverse costs liability when apportioning the costs of the arbitration between the parties”. The new ICC rules, however, do not highlight the issues related to funding costs. It remains to be seen whether Tribunals will consider funders accountable for arbitration costs when the funded party is not successful. 

Position of TPF in Middle Eastern jurisdictions 

As discussed earlier, the number of arbitration proceedings related to construction and energy industries is increasing and this can provide exciting business opportunities for funders.  The construction sector is an important source of demand for TPF in the Region and would benefit from clear regulatory frameworks for TPF arrangements as a cash flow 

management tool. The United Arab Emirates is one of the pioneers in regulating TPF arrangements in the Region⁷. Although TPF is still largely unregulated in many jurisdictions located in the Region, TPF is not prohibited by statute, whether generally or specifically. The absence of any express legislative prohibition might lead to the conclusion that there is no impediment in the use of TPF in arbitration⁸.  

The common law historic barriers including the doctrines of champerty and maintenance prohibiting TPF do not apply in the MENA Region. The legal system of many jurisdictions  located in the Region is inspired by civil law and Sharia traditions. For instance, the Iranian Constitution provides that all laws and regulations shall adhere to Islamic requirements. Neither the Iranian domestic nor international arbitration rules have been updated so far⁹. It remains to be seen whether the Iranian legislature will recognize the use of TPF or not. In doctrine, it has been widely argued that TPF is compatible with Sharia principles¹⁰. In light of the growth in the use of TPF, it is expected that other jurisdictions will renew their laws and arbitration rules and expressly permit the use of TPF in arbitration. 

Concluding Remarks 

The international arbitration community has begun to acknowledge the crucial role of TPF in the construction, energy, and infrastructure industries. Regulating TPF can provide solutions for parties wishing to resolve their disputes in a risk averse and cost-effective manner. Besides, it can provide new opportunities and career paths for lawyers and also provide more investment options for corporations.  Thus, the regulatory aspects related to TPF in the ADR sector should also be taken into consideration in the MENA Region.  

Although time will reveal the effectiveness of the new DIAC Rules, these rules represent a modernisation of the DIAC arbitration landscape and can promote UAE as the leading arbitral seat in the Region. Incorporation of provisions dealing with TPF is a welcome evolution from the 2007 DIAC Rules. In view of the foregoing, it is hoped that the DIAC Rules 2022 will deepen the effectiveness of TPF in international arbitration.

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¹ See the previously published article on the CIArb UAE Branch News: https://ciarbuae.wordpress.com/2022/05/13/multi-party-and-multi-contract-arbitration-provisions-under-the-new-2022-diac-arbitration-rules/ 

² The text of the 2007 DIAC  Rules: http://www.diac.ae/idias/rules/  

³ In this regard, see chapter 3 of the Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, Available at https://cdn.arbitration-icca.org/s3fs-public/document/media_document/Third-Party-Funding-Report%20.pdf 

⁴ Article 11.7 of the 2021 ICC Arbitration Rules 

⁵ Article 13 of VIAC Rules also provide that a party’s disclosure shall be in “its statement of claim or its answer to the statement of claim, or immediately upon concluding a third-party funding arrangement”. 

⁶ See Alberto Favro, “New ICSID Arbitration Rules: A Further Step in The Regulation of Third-Party Funding”, Kluwer Arbitration Blog, June 3 2022, at http://arbitrationblog.kluwerarbitration.com/2022/06/03/new-icsid-arbitration-rules-a-further-step-in-the-regulation-of-third-party-funding/ 

⁷ DIFC Courts issued Practice Direction No. 2 of 2017 on Third Party Funding in the DIFC Courts, https://www.difccourts.ae/2017/03/14/practice-direction-no-2-2017-third-party-fundingdifc-courts/ 

⁸ Alain Farhad, “Does Third-Party Funding Have a Future in the MENA Region?” Bahrain Chamber for Dispute Resolution, International Arbitration Review, 2018 

⁹ Iran has adopted a dualist arbitration regime for arbitration: Domestic arbitration is governed by the Civil Procedure Code and international arbitration is governed by the Law on International Commercial Arbitration. 

¹⁰ For a better understanding of the issue, see C. Eken (2021, forthcoming) “Analysis of Third-Party Funding within the Islamic Framework” (TDM, ISSN 1875-4120) May 2021, http://www.transnational-dispute-management.com 

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Sima Ghaffari is an Associate member of the Chartered Institute of Arbitrators. She acts as an arbitrator and also serves as an ICC YAF Representative for the MENA Region chapter. Sima can be contacted on sima.ghaffari6@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.

To submit an article for publication please contact our general editor Reshma Oogorah.

Jokamation August ’22

by Mohieeldin Elbana MCIArb

This edition’s Joke…

 Q. What do you call an honest man with great teeth? 
Toothful!

…and information

Q. What is the role of the Federal National Council (“FNC”) and how is it constituted? 

The FNC is the parliamentary body and one of the five federal authorities in the United Arab Emirates (“UAE”). Pursuant to Articles 89 to 92 of the UAE Constitution, its functions include: 

• passing, amending or rejecting federal draft laws; 
• examining the Annual General Budget draft law and the draft law of the final accounts; and 
• discussing international treaties, agreements and general issues pertaining to the affairs of the UAE Federation and providing recommendations. 

As per Article 68 of the UAE Constitution, FNC has 40 members from the seven Emirates.  

Each Emirate has a number of seats prorated to its population: 

• Abu Dhabi – 8 seats; 
• Dubai – 8 seats; 
• Sharjah 6 seats; 
• Ajman 4 seats; 
• Umm Al Quwain 4 seats; 
• Ras Al Khaimah 6 seats; and  
• Fujairah 4 seats. 

Under Article 77 of the UAE Constitution, each FNC member represents the entire country and not the Emirate that he or she represents. 

For further information, follow this link: https://u.ae/en/about-the-uae/the-uae-government/the-federal-national-council- 

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

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

Announcements: From August 2022

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

Date	Event
October / November 2022	Introduction to International Arbitration in Arabic (hybrid delivery – in-person with online streaming )
24 August 2022	Module 1– Law, Practice and Procedure in International Arbitration (online delivery)

Social & other events

Date	Event
September	CIArb Joint event with ICC
6 October 2022	CIArb Joint event with DIAC: “How to get your first appointment as arbitral secretary”
19 October 2022	Arbitration and Arbitral Institutions: watching for CIArb linkages together
October	Mock arbitration for the students of BuiD
15 November 2022	CIArb Event during Dubai Arbitration Week.

Committee Members 2022

Robert Sliwinski C.Arb FCIArb
Chair
 r.sliwinski@alsuwaidi.ae 

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Kasia Halliday FCIArb 
Vice Chair - Dubai  and Education & Training Officer
KHalliday@thinkbrg.com

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Glenn Trueick FCIArb
Vice Chair - Abu Dhabi and Membership Secretary
Glenn.Trueick@fticonsulting.com

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Stuart Allan FCIArb
Honorary Secretary
stuart_allan@me.com

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Conrad Bromley FCIArb
Honorary Treasurer
conradbromley@outlook.com

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Reshma Oogorah FCIArb
Public Relations Officer
reshma@niyom.legal

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Zeina Obeid FCIArb
Events Coordinator
zeina@obeidpartners.com 

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Sean Yates FCIArb
Data Manager
seandyates@gmail.com  

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Mohieldiin Elbana MCIArb
Website Officer 
momoelbana@hotmail.com

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

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Iryna Akulenka FCIArb
Immediate Past Chair
iryna.akulenka@gmail.com  

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Asha Treesa Bejoy FCIArb
Committee Member
asha@atblegal.com

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Joe Durkin FCIArb
Committee Member
jdurkin@lcmfinance.com

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Sandra Eze MCIArb
Committee Member
sandra.eze@anotherwayy.com  

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Haitham Mokhtar Abdelaty MCIArb
Committee Member
haitham.mokhtar@gmail.com  

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

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Eman Saeed MCIArb
Committee Member
ciarb.emansaeed@hotmail.com -  

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Michael Tonkin FCIArb
Honorary Secretary
MichaelTonkin@hka.com

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Credits & Contributors August ’22

The publication of our August 2022 Newsletter has been possible thanks to the contribution and support of the following individuals:

Contributors

Mohamed Amara, MCIArb
John Boultwood, ACIArb
Jonathan Bradbury, MCIArb
Mohieeldin Elbana, MCIArb
Sandra Eze, FCIArb
Kasia Halliday, FCIArb
Stephen A Hibbert, FCIArb
Sima Ghaffari, ACIArb
Maria Mazzawi, FCIArb
Eman Saeed, MCIArb
Robert Silwinski, C.Arb, FCIArb
Yvonne Zielinski

Newsletter Team

General Editor: Reshma Oogorah, FCIArb 
Accomplishments & Past Events: Eman Saeed, MCIArb 
Events & Training: Sandra Eze, FCIArb 
Articles: Reshma Oogorah, FCIArb 
Jokamation: Mohieeldin Elbana, MCIArb 
Members Interviews: Kasia Halliday, MCIArb 
Design & Development: Chris Blackhurst 

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

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

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