Month: November 2022

Leadership Message: November ’22

Leadership message from Kasia Halliday, a Fellow of the Chartered Institute of Arbitrators, a Vice-Chair and Training and Education Officer on the CIArb UAE Branch Committee

by Kasia Halliday, a Fellow of the Chartered Institute of Arbitrators, a Vice-Chair and Training and Education Officer on the CIArb UAE Branch Committee

I am delighted to write the Leadership Message for the 6th Edition of the CIArb UAE Branch’s Newsletter and the last edition for 2022. It has been an exceptional year for the CIArb UAE Branch. The training and education courses offered, continue to increase in popularity. The Events team led by Zeina Obeid, and the Young Members Group (YMG) led by Arun Visweswaran, continue to deliver a multitude of seminars and events, not only offering invaluable insight into the industry but also providing practical knowledge and assistance to develop a career in arbitration. I feel privileged to be part of this success and to see the continued growth of the CIArb UAE Branch.  

It’s been almost two years since I took up the role of the Education and Training Officer for the CIArb UAE Branch, and at the Annual General Meeting held in June 2022, I was also elected Vice Chair representing the Emirate of Dubai. Over this period, I am delighted that we continued to provide training and education services aligned with one of the CIArb’s key objectives:  

“To promote and facilitate worldwide the determination of disputes by arbitration and alternative means of private dispute resolution other than resolution by the court”.  

The training modules offer a staged introduction into the subject of arbitration and ADR, and a pathway leading to Fellowship in arbitration and / or mediation. The first in the series of the training modules offered by the UAE Branch, is the Introduction to International Arbitration course. The course provides candidates with an understanding of the general principles of International Arbitration and its relationship to other dispute resolution processes, as well as an introduction to the legal framework, and good practice & procedure in International Arbitration within their jurisdiction.  

We run the Introduction to International Arbitration course twice a year, typically early spring and late autumn, and it’s always one of our most popular courses. Successful completion of this course enables candidates to join CIArb at Associate level. In the next few months, we are planning to deliver the Introduction to International Arbitration course in Arabic for the first time. It’s been a long and challenging process to get to this point and I am incredibly grateful to everyone who contributed to making this possible.     

CIArb members are a very diverse group of professionals, and CIArb’s Associate members are probably the most diverse of all our members, consisting of junior professionals on their chosen career path, to established professionals from various non-arbitration fields, who have decided to either develop or enhance their knowledge of arbitration, and possibly even transition into arbitration entirely.  

In this newsletter, we meet two Associate members and one Fellow member, representing experts, funders and engineers, all of whom are at different stages of their respective careers, following different paths to their current roles in arbitration, all of whom are a testament to the diversity of CIArb members.  

We chat with Maria Eustaquito, a Junior Consultant and aspiring Quantum Expert from CBBG who transferred from construction management; Dilip Massand, Chief Executive Officer and Co-founder of Phoenix Advisors, specializing in litigation management and investment, a truly international professional who transitioned from advising a hedge fund in the US for a Global Asset Recovery, to funding arbitration in UAE; and finally Kunal Mishra, a Contracts Engineer at  the National Marine Dredging Company, who manages dispute avoidance and dispute resolution procedures related to marine projects.  

I have thoroughly enjoyed talking to each one of our interviewees and I hope you enjoy reading their stories. I’m sure that we all agree that there is nothing like a real-life story. I am a great believer that real-life examples of people’s journeys can inspire, motivate or encourage us to persevere in our chosen direction or switch the trajectory altogether.  

If any of the interviews spark an interest in you towards pursuing a career in arbitration, to take part in CIArb’s training or attend any of our events or seminars, I would like to refer you to the Training & Events section of this Newsletter.  

Equally, if you would like to share your “story”, we would love to hear from you.    

I hope you enjoy reading this newsletter.  

Thank you  

Kasia Halliday  

Kasia Halliday, is a Fellow of the Chartered Institute of Arbitrators, a Vice-Chair and Training & Education Officer on the CIArb UAE Branch Committee. She is a Chartered Surveyor and an Associate Director at Berkeley Research Group, providing quantum expert assistance to clients and counsel. She can be contacted on KHalliday@thinkbrg.com

Editorial November 2022: Welcome to the sixth edition of the CIArb UAE Branch Newsletter

Editorial November 2022:Reshma Oogorah, FCIArb, welcomes you to this sixth edition of the CIArb UAE Branch Newsletter

By Reshma Oogorah, FCIArb

Welcome to this sixth edition of the CIArb UAE Branch newsletter. After the quieter summer months, we saw the return of the branch’s professional and social events.  We are happy to have hosted three successful events in October 2022 alone, which you can read more about in our Accomplishments section.  

During this Dubai Arbitration Week (“DAW2022”), we are looking forward to seeing you again at the three events organised and supported by our branch, notably, a one-day conference on Energy Disputes, the Young Members Group (CIArb YMG) Debate and a collaborative event with Tahkeem on the 15, 16 and 17 of November 2022, respectively. DAW2022 promises to be a fun-filled week packed with an even wider choice of stimulating discussions, debates and social events welcoming even more participants this year. 

With the Trustee elections and CIArb congress having been held in London earlier this month, we witnessed the making of many important decisions within the leadership of the CIArb. Our Chair, Robert Silwinski represented the CIArb UAE Branch at Congress and participated in the Presidential Election on our behalf. The results of the election have been announced and we note the election as incoming CIArb Presidents, of Jonathan Wood for the year 2024 and of Prof. Dr. Mohamed Abdel Wahab for the year 2025, as successors to the current CIArb President, Jane Gunn. 

As we approach the festive season and the end of this Gregorian year, I join my colleagues on the CIArb UAE Branch committee to wish you, your team and families the very best for what remains of this year, a happy holiday season and a delightful start to the year 2023.   

We will be back with a fresh edition of our quarterly newsletter in February 2023. Meanwhile, keep an eye out for our branch’s survey through which we will be collecting your views and ideas on the branch’s past and future activities. 

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 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 / November ’22

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

In this sixth edition of the CIArb UAE Branch newsletter, we take a look back at some of our accomplishments and events from the last few months as well as events organized by other CIArb branches in the Middle East. 

Accomplishments of CIArb UAE Branch 

A throwback of the CIArb UAE Branch‘s events and accomplishments from the last few months: 

  1. On 6 October 2022, the CIArb UAE Branch in collaboration with the Dubai International Arbitration Centre (DIAC), hosted a Joint Event titled – “How to Get Your First Appointment as an Arbitral Secretary”  

The panelists Sami Tannous,  Jyothi Mani, Dr. Asma Al Rasheed, and Karim Nassif talked about the role of a Tribunal Secretary, the value they add to the arbitral proceedings, the parties and tribunal, and the added benefit of this role to prepare the next generation of arbitration practitioners and the promotion of diversity. 
 
Robert Sliwinski, Chair of the CIArb UAE Branch, delivered the Welcome Remarks, and Fatima Balfaqeeh (MCIArb, MRICS, FCIPS) moderated the discussion.

Read more here: https://www.linkedin.com/feed/update/urn:li:activity:6982999773955928064  

  1. On 18 October 2022, the CIArb UAE Branch and ICC UAE jointly organised a unique event titled – “Investment Arbitration and Energy Projects in the UAE and beyond” at the Dubai Chambers. The event was sponsored by Mahmood Hussain Law Firm and hosted by Dubai Chambers of Commerce. 
     
    The event highlighted international challenges in investment arbitration, particularly in relation to energy projects, providing the different international arbitration perspectives on sustainability-related disputes.

    Read more here: https://www.linkedin.com/feed/update/urn:li:activity:6984051154858987520  
  1. On 26 October 2022, the CIArb Young Members Group UAE (YMG), organized a successful event on how to make impactful presentations and enhance the networking skills presented by a renowned coach and international speaker, Flo Akinbiyi. The event took place at Intersect, DIFC, Dubai.

    Read more here: https://ciarb.org/media/22637/ciarb-uae-ymg-masterclass-invitation-intersect-difc-on-26-october-2022.pdf  

Accomplishments of CIArb Branches – Middle East  

  1. The Ciarb Qatar Branch hosted two online events: 
  1. In Egypt, the CIArb Eqypt Branch hosted two in-person events in September 2022: 

Newsworthy events 

  1. ADR training provision strengthened in the Kingdom of Saudi Arabia: Following the successful introduction of Chartered Institute of Arbitrators (CIArb) alternative dispute resolution (ADR) training in Kingdom of Saudi Arabia, CIArb and the Saudi Centre for Commercial Arbitration (SCCA) have agreed to extend their collaboration for the delivery of dispute resolution training including international arbitration and mediation delivered by the SCCA Academy in Arabic and English. The training adheres to CIArb’s world-renowned standards. Additionally, CIArb is working with the SCCA which has agreed to host a CIArb Branch to support CIArb members in the Kingdom of Saudi Arabia.

    Read more here: https://ciarb.org/news/adr-training-provision-strengthened-in-the-kingdom-of-saudi-arabia/  
  1. CIArb Trustee election results confirmed: On 3 November 2022, the Ciarb announced the election of new members to the Board of Trustees with effect from 1 January 2023 for a term of 4 years. The elected candidates are: 
  • Africa – Chikwendu Madumere, FCIArb; 
  • East Asia – Paul Barrett, FCIArb; 
  • Middle Eastern Indian Sub-Continent – Prof Dr Mohamed Abdel Wahab, C.Arb, FCIArb; and 
  • Great Britain – Andrew Miller KC, FCIArb 
  • Ben Giaretta, FCIArb 
  • Lucy Greenwood, FCIArb 

To learn more about the Board of Trustees, the elected candidates and the breakdown of the results follow: https://ciarb.org/news/ciarb-trustee-election-results-confirmed/  

  1. CIArb Presidential Election 2022: The CIArb announces the election of its Presidents Jonathan Wood FCIArb with effect from January 2024 and Prof. Dr. Mohamed Abdel Wahab C.Arb, FCIArb with effect from January 2025. The election took place in the opening session of Congress on Tuesday 8 November 2022 at CIArb Headquarters in London in accordance with the relevant provisions of CIArb’s Royal Charter, Bye-Laws and Regulations.

    Read the full announcement here: https://www.linkedin.com/posts/ciarbofficial_ciarb-legal-legalprofession-activity-6995784983227285505-FWm8?utm_source=share&utm_medium=member_desktop 

 

Witnesses and Taking an Oath in Arbitral Proceedings 

In a unique ruling of Dubai Courts, the courts explain that it is not a condition to use the words “Almighty God” nor is there a need for the witness to place its hand on a Quran or a Bible.

by Nayiri Boghossian MCIArb 

Witnesses are required to take an oath in arbitral proceedings and sometimes tribunals require that an oath be taken in the name of God and with a holy book. This article argues that there is no need to use a holy book or swear, in the name of God, in arbitral proceedings in the UAE. Nayiri Boghossian, MCIArb examines UAE legislation on this point, as well as decisions by the Dubai courts.  

Witnesses and Taking the Oath in Arbitral Proceedings 

According to the laws of the United Arab Emirates (“UAE”), it has historically been a requirement for witnesses to take an oath when giving their testimony in arbitration proceedings. Arbitral tribunals are generally very careful to comply with this requirement to ensure the enforceability of the arbitral awards that are being issued. Tribunals would normally ask the witness to swear on the holy book and to take an oath in the name of the “Almighty God”. This article argues that there is no need to use a holy book nor is there a need to swear in the name of God when witnesses are giving evidence in arbitration proceedings. 

The Requirement of Taking an Oath 

The requirement of taking an oath was set out in Article 211 of the Federal Law No. 11/1992 on the Civil Procedures Law (“CPL”). Article 211 used to state that arbitrators should administer an oath on witnesses. Article 216 of the CPL provided the instances where an award can be nullified such as in the case of procedural irregularity that impacted the award. On this basis, awards which relied on testimonies of witnesses who had not taken an oath were subject to nullification.   

Both Articles 211 and 216 were repealed with the issuance of the Federal Arbitration Law No. 6/2018 (“Arbitration Law”). The Arbitration Law does not include any provision akin to Article 211. As a result, there is currently no express requirement for administering an oath on witnesses. Court decisions issued since the promulgation of the Arbitration Law have upheld the requirement of taking an oath. However, these decisions relate to arbitral proceedings that took place prior to the issuance of the Arbitration Law[1].  

Commentators expect that courts will require that an oath be administered on witnesses as court decisions considered that taking an oath is mandatory. For example, in Dubai Court of Cassation Appeal No. 322 of 2004, the Court of Cassation explained that the requirement set out under Article 211 of the CPL is of mandatory nature as it ensures the accuracy of the testimonies made. As such, arbitrators are bound to administer an oath and the violation of the said requirement renders the arbitral proceedings invalid. The Court further explained that a party may challenge the validity of the award before the courts even if such party had not challenged the failure to administer an oath before the arbitral tribunal. As for the wording of the oath, the Court stated that it should contain language that shows it is a sworn testimony.  

We find similar notions in Dubai Court of Cassation No. 503 of 2003, which provides for the mandatory nature of taking an oath and the potential invalidity of the arbitral proceedings in case of non-observance of the said requirement. The decision further explains the rationale for imposing an oath, which is to ensure the accuracy of the testimonies as it would discourage witnesses from making a false testimony. This would reassure the parties of the veracity of witness testimonies particularly since false testimony is a criminal offense. In this specific case, the court also mentioned that taking an oath requires a sworn testimony and found that this was not met in the instant case as the arbitrator had simply drawn the attention of the witnesses that they are bound to tell the truth and that harsh consequences can follow if they do not do so. The court explained that simply alerting a witness of the need to say the truth is not enough and it decided that the award should be nullified.  

The Wording of the Oath and the Use of A Holy Book 

The wording of the oath usually adopted is the one set out at Article 41(3) of the Federal Law No. 10/1992 on Evidence in Civil and Commercial Transactions (“Evidence Law”). It can be translated as follows “I swear by Almighty God that I shall tell the whole truth and nothing but the truth”. It is common practice for tribunals seated in the UAE to use largely similar wording and to require the witness to swear on their holy book.  

A question arises with respect to witnesses who do not believe in the “Almighty God” and who do not subscribe to any specific holy book. Clearly, a tribunal may not force a witness to testify in a manner that is not in line with his or her conviction.  

Indeed, the courts themselves have taken a more lenient approach to this question. In Dubai Court of Cassation No. 171 of 2010, the claimant applied for the ratification of two arbitral awards while the respondent filed a petition for the nullification of those awards. A number of nullification grounds were raised which included the argument that the awards had violated public policy and the Islamic Sharia rules as the oath administered on the witnesses did not mention God since the oath was as follows “I swear that the evidence I will present is the truth and nothing but the truth”.

In addition, the respondent argued that testimony should be offered on the holy Quran or Bible. The Court of Cassation dismissed the aforementioned ground of appeal explaining that as per Article 211, a witness should take the oath before a tribunal prior to giving its testimony. Otherwise, an award that is based on the testimony of witnesses who have not taken the oath will be null and void.  

The Court of Cassation went on to explain that although the Evidence Law requires the witness to swear by “Almighty God” that they shall tell the whole truth and nothing but the truth, it is not a condition to use the words “Almighty God”. This is so because scholars of Islamic Sharia have determined that in stating in his or her oath, the words, “I swear” or “I take the oath”, a witness effectively adheres to the meaning or requirements of an oath.

In fact, it is even sufficient for the witness to state “I testify” as this includes an oath. The Court of Cassation explained that the key aspect is to not violate the public policy by testifying for example in the name of something or someone other than God. The Court of Cassation also clarified that it is not a requirement for the witness to place its hand on a Quran or a Bible when testifying as the law did not impose such a requirement. In the instant case, the witnesses had testified after taking an oath before the tribunal using the words “I swear” and the oath administered stated “I hereby swear that the evidence I am presenting are the truth and nothing but the truth”. As such, it was held that the testimonies were offered in a correct manner and the Court of Cassation rejected the appeal. 

Final remarks

If it is not a requirement to swear in the name of God or on a holy book. Tribunals should simply abandon the practice of having a witness place its hand on a holy book and swear, in the name of God. In other words, they should apply the same approach to witnesses who believe in God and to those who do not. There is clearly no need to make a distinction and more importantly, there is no need to impose more cumbersome requirements beyond what is actually needed. Such approach would simplify the process and avoid the situation where a witness is asked about their religious beliefs, which is, after all, a very personal matter.  

  1. Dubai Court of Cassation Appeal No. 205/2019 and Dubai Court of Cassation Appeal No. 364/2019

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.

To submit an article for publication please contact our editors, Farhan Shafi, Mohammed Taj or Reshma Oogorah.

The signing of arbitral awards under UAE law: recent developments with respect to the enforcement of foreign awards in the UAE

Soraya Corm-Bakhos MCIArb looks at UAE law on the signing of arbitral awards and its impact on the enforcement of foreign awards

by Soraya Corm-Bakhos MCIArb

It is well settled under UAE law that arbitrators are required to sign the reasoning and dispositive parts of an arbitral award, failing which the award is invalid. This requirement extends to foreign awards. This article looks at the relevant provisions of the Federal Arbitration Law and latest jurisprudence from the UAE courts refusing to enforce foreign awards based on a irregularity in the signing of the award.  

Introduction

Under UAE law, an award must comply with several formalistic requirements to ensure its validity. One of those mandatory requirements is the signature of the award by the arbitrators. In the event of an irregularity in the signing of an award, there is a risk that the award may be set aside or not enforced by the onshore UAE courts. Recent case law confirms that this position not only remains unchanged for domestic awards under the UAE Federal Arbitration (FAL) but may also negatively impact the enforcement of foreign awards under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC).  

Relevant legal provisions  

Prior to the entry into force of the FAL in 2018, Article 212(5) of the UAE Civil Procedures Code (CPC) provided in relevant part that the award “must be in writing […]it must in particular include […] the signatures of the arbitrators”.  

Although Article 212(5) of the CPC did not include any specific detail as to where and how the award must be signed, the onshore UAE courts have ruled that: 

  1. It is not sufficient for arbitrators to sign the final page of the award; both the reasoning and the dispositive parts of an award must be signed (see Case No. 233/​ 2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009);  
  1. if the reasoning and the dipositive part of an award overlap or are contained in the same document, it may be sufficient for the last page of the award that contains both part of the reasoning and the dispositive part to be signed (see Case No. 233/2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No. 156/2009, judgment of the Dubai Court of Cassation of 27 October 2009); and 
  1. this signing requirement qualifies as a matter of public policy which may be raised ex officio by the court (see Case No. 218/2006, judgment of the Abu Dhabi Court of Cassation dated 17 October 2006; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009). 

Based on those rulings, it is well settled that a domestic award may be set aside or declared unenforceable as a matter of UAE law in the event of a irregularity in the signing of the award. Arbitrators and legal counsel operating in the UAE are mostly familiar with this stringent signing requirement and will usually always err on the side of caution and ensure that each arbitrator signs or at least initials each page of the award with a full signature on the final page of the award.  

Article 41(3) of the FAL, which replaced Article 212(5) of the CPC, now provides: “The award shall be signed by the arbitrators and in arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated”. Like Article 212(5) of the CPC, Article 41(3) of the FAL still requires the award to be signed by all arbitrators but does not provide that an award must be signed on each page or where the signatures must be affixed.  

Recent local courts’ rulings 

Recent rulings of the onshore UAE courts have confirmed that the previous line of cases issued under the old Article 212(5) still apply under the FAL in the context of not only domestic but also foreign arbitral awards. 

Domestic awards 

In a judgment dated 14 June 2020, the Dubai Court of Cassation considered the enforcement of a UAE seated arbitral award under the FAL. The court adopted a strict interpretation of Article 41(3) of the FAL requiring that both the reasoning and dispositive parts of the award be signed.  

However, importantly, in this case the court did not set aside the award for violation of public policy but decided to remit the award to the Dubai Court of Appeal to allow the irregularity in the signing of the award to be rectified by the arbitral tribunal in accordance with Article 54(6) of the FAL.[1] Article 54(6) allows a party to the arbitration to request the competent court of appeal to let a tribunal rectify any formalistic defect in the award that would otherwise serve as a ground for nullification. [2]  

Foreign awards 

In two subsequent cases, the Dubai Court of Cassation applied the narrow and strict approach to the signing of awards in the context of applications for enforcement of foreign awards, i.e. awards rendered in proceedings seated outside of the UAE.  

On 15 April 2020, the Dubai Court of Cassation issued a judgment refusing to enforce a foreign award, which contained the signature of the arbitrator on the last page only.[3] In reaching this decision, the court referred to the following Articles of the NYC: 

  1. Article III which provides in relevant part: “Each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon”; and 
  1. Article V(2)(b) which provides that enforcement of an arbitral award may be refused if the competent enforcing court finds that the “recognition or enforcement of the award would be contrary to the public policy of that country”. 

The court considered that the “applicable procedural rules” comprise all the provisions of the FAL, including Article 41(3). As regards Article 41(3), the court confirmed its previous line of cases and ruled that signing an award requires signing both the dispositive and the reasoning parts of the award otherwise the award is deemed invalid and enforcement would be contrary to UAE public policy. 

On 21 April 2022, the Dubai Court of Cassation refused to enforce the foreign award (which was issued under the ICDR-AAA Rules) on grounds of public policy for lack of compliance with the UAE law signing requirements.[4] The court once again considered that arbitrators must sign not only the operative part of the award but also its reasoning for the award to be valid and enforceable.  

Conclusion 

Despite the entry into force of the FAL and the more streamlined enforcement process of foreign awards introduced by the latest amendments to the CPC[5], the onshore UAE courts remain susceptible to refuse enforcement of awards, whether domestic or foreign, on (perhaps overly) technical grounds.[6]   

When arbitrating parties anticipate that enforcement may need to take place in the UAE, they should ensure that the arbitrators sign every page of the award (regardless of whether the law of the seat includes a similar requirement) to mitigate the risk of a challenge to enforcement based on a failure to comply with the mandatory signing requirement under UAE law.

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

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

To submit an article for publication please contact our editors, Farhan Shafi, Mohammed Taj or Reshma Oogorah.

  1. Case No 1083/2019 – Ali & Sons Marine Engineering Factory LLC v E-Marine FZC, judgment of 14 June 2020.
  2. For a commentary of this decision, see Gordon Blanke “Your signature, please: recent developments under article 41(3) of FAL”, Practical Law Arbitration Blog (August 20, 2020) available at http://arbitrationblog.practicallaw.com/your-signature-please-recent-developments-under-article-413-of-fal/.
  3. Case No. 403/2020.
  4. See case No. 109/2022, judgment of 21 April 2022. For a detailed commentary of this decisions, see Sara Sheffield, Reem Faqihi, “UAE Court Rejects Enforcement of Foreign Arbitral Award for Irregularity in the Placement of the Arbitrator’s Signature and Confirms the Period for Appealing an Order to Execute Foreign Arbitral Awards”, Kluwer Arbitration Blog (12 September 2022), available at http://arbitrationblog.kluwerarbitration.com/2022/09/12/uae-court-rejects-enforcement-of-foreign-arbitral-award-for-irregularity-in-the-placement-of-the-arbitrators-signature-and-confirms-the-period-for-appealing-an-order-to-execute-foreign-arbitr/.
  5. See Cabinet Decision No. 57 of 2018 amending the CPC; Article 85(2) of the Cabinet Decision now provides that an application for enforcement of a foreign award may be submitted directly to the execution judge who is required to issue its decision within 3 days. The judge’s order remains subject to appeal.
  6. See Cabinet Decision No. 57 of 2018 (in particular Article 85(2)), which provides that an order for enforcement of a foreign award may now be obtained by way of petition submitted directly to the execution judge.

Member Profile: Dilip N Massand, an Associate of the Chartered Institute of Arbitrators

We chat to Dilip N Massand, an Associate 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 the co-founder and Chief Executive Officer of Phoenix Advisors Ltd, an Abu Dhabi firm that offers litigation management services and invests in Legal Finance. In 2018, I was approached by claimants seeking guidance in cross-border disputes, and regional investors who had heard about litigation funding. So, I decided we should start our own firm to do both.  

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

A. I started my career as General Counsel for our Family’s Construction and Engineering firms, which at their height in the ‘90’s had 4 offices in the US, 2 in the Middle East, and 2 in India. So I “cut my teeth” on managing law firm budgets and disputes in large infrastructure projects. I also learned the difficulties that foreign investors face in emerging markets and always looked at the law from a business perspective.  

In the late 2000’s I started advising a hedge fund in the US for a Global Asset Recovery strategy targeting institutional investors who had lost money in the financial crisis. This led me back to the Middle East, where I started working with many British lawyers who then told me I was a “litigation funder”. For us, funding the litigation was just part of our asset recovery efforts, including global asset tracing and forensic audits. It was then that I learned about this industry, and from the UAE was able to watch it proliferate from Australia to Silicon Valley, and ultimately launched Phoenix.  

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

A. I first heard about CIArb from a friend in Dubai who had been encouraging me to look beyond funding litigation and asset recoveries. At the same time, I started seeing more international arbitration disputes and awards  which required funding as the claimants did not want to spend the additional money and were not familiar with international enforcement. So, in order to “sharpen my skills” I attended CIARB’s Oxford Diploma program in 2020. Though I was unable to complete the program at that time due to my workload, the experience opened my eyes to dispute resolution beyond the United States, the importance of Arbitration in international settings, and the tremendous community of diverse professionals that make up the CIArb membership. The progression of my career is inextricably linked to CIArb as I build my expertise and ability to evaluate the merits of arbitration claims globally. I was finally able to resume my CIArb studies earlier this year and became a member in the Spring of 2022.  

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

A. I always feel a sense of achievement when I am speaking at events in India or Africa and can educate the audience as to how Litigation Funding can be applicable in their jurisdictions given the recent changes in domestic arbitration laws. It is rewarding to see students, lawyers, and investors come up to you to learn more and keen to build relationships. I also feel a sense of accomplishment when speaking in the US and explaining the role of arbitration in international disputes as opposed to litigation. CIArb has helped me to develop a sense of “subject matter expertise”.    

Q. What are your aspirations for the future?

A. I would like to build Phoenix to its fullest potential so that the UAE can be proud of an indigenous innovator in the legal industry being born here as opposed to an existing firm coming in from elsewhere. I would also like to have affiliates in the US, India and Africa.  

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

A. That the field of law is constantly evolving, and that new opportunities and careers within it will continue to manifest.  Who would have thought 30 years ago, that there would be a legal finance industry, or legal tech, or online dispute resolution. With that in mind, I say this – don’t be afraid to pivot, don’t be afraid to try new things, and keep learning…    

Dilip N Massand is an Associate of the Chartered Institute of Arbitrators. He lives in Dubai and New York and may be contacted on dmassand@phoenixadvisors.ae.  

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

Member Profile: Kunal Mishra, FCIArb

We chat to Kunal Mishra, a Fellow of the Chartered Institute of Arbitrators. 

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

A. Currently, I am working as a Contracts Engineer for the National Marine Dredging Company (NMDC), a leading semi-government contracting firm specializing in marine work, based in Abu Dhabi. My responsibilities are mainly in managing the post-contract activities related to marine projects. I am involved in the preparation of claims and follow-up until its resolution, management of complex contractual matters ensuring that contractual obligations are fulfilled, and advising the project team on resolving the disputes amicably. 

In 2007, I graduated with a degree in Civil Engineering from Dr. Babasaheb Ambedkar Marathwada University in India. Furthermore, to strengthen my knowledge in this field, I did a specialization in Construction Management from the National Institute of Construction Management (NICMAR), India in 2009.   

After graduation, I started my professional career as a quantity surveyor in India with a subcontracting firm and successfully handled commercial and contractual aspects of metro-rail, road, airport, and bridge projects. The foundation of my career in contracts and commercial management was laid during these initial years. While working with these organizations, I understood the complete life-cycle of contract management and disputes until their final settlement is achieved through alternative dispute resolution (ADR) mechanisms. During this time, I found the process of ADR very appealing and I became attracted to it as I discovered that I had a natural interest and passion for it.  

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

A. Having acquired the required skillset and sound knowledge in contract management and dispute resolution, I got an opportunity to work with a leading contracting firm specializing in residential and commercial buildings in Dubai. I joined as a contract engineer and successfully managed various contractual issues arising under the EPC, design and build contracts. 

Later, I moved to Abu Dhabi to work with a leading contracting firm specializing in high-rise buildings and infrastructure projects in pre-contract management activities. My main role was to carefully review the various forms of the contract conditions in detail, advise the company on the inherent risks, and propose mitigation strategies. During this time, I deepened my analysis and drafting skills, which helped me uncover important insights from various forms of contracts. Furthermore, in order to expand my knowledge of ADR, I did a Masters in ADR from NALSAR University in India in 2020.  

My core experience in contracts and claims management related to infrastructure and building projects and my status as a Fellow of the CIArb led to my progress to my current role as Contracts Engineer in NMDC, Abu Dhabi in 2021. 

In my 13 years of diverse international experience in contracting firms, I gained valuable experience in contracts and claims management. I am eagerly awaiting more opportunities to work in ADR and hope to advance my career in the legal field. I strongly believe that the CIArb is the best platform to fulfill my goals. 

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

A. My advancement in the field of ADR is closely connected to the CIArb. Since I was interested in ADR, I applied for and was admitted to an LLM in Construction Law and Arbitration at Robert Gordon University (“RGU”), UK, in 2020.  

After successfully completing my first year of the LLM, I qualified for membership of the CIArb in 2021. Later, I passed the award-writing course, cleared my peer interview, and received the fellowship of the CIArb in the same year. The fellowship is of great benefit to me as it facilitates my connection to the global network of people in the field of ADR and enables me to share ideas and experiences with them. These help me to apply the principles of contract and ADR in construction projects and adequately guide parties to reach an amicable settlement. The CIArb played an important role in identifying my potential and giving me recognition through its fellowship. 

Currently, I am guiding my friends and colleagues to enhance their skills in the fields of contract management and ADR in the same way that my mentors helped me. 

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

A. My biggest achievement is gaining self-confidence and motivation after I received the fellowship of the CIArb. In a true sense, self-confidence and motivation are the foundation of all great success and achievement. I was able to achieve this with great support from my mentors, family, RGU, and CIArb. This self-confidence and motivation inspire me to achieve my professional goals in the field of ADR.  

Q. What are your aspirations for the future?

A. As a Contracts Engineer, I would like to increase my involvement in settling complex claims and resolving contractual and commercial issues related to the construction industry. This will help me enhance my skills in negotiation and contract management.  

Currently, I am in the third year of my LLM in Construction Law and Arbitration. The knowledge I gained during studying has given me a further thrust towards aspiring to a legal career in the field of ADR. Thanks to my managers and my family who always believed, supported and inspired me in achieving my goals. I am also looking forward to joining the CIArb’s mentorship programme in order to gain some practical experience in arbitration from more experienced practitioners.  

My aspiration for the near future is to see myself acting as an arbitrator and claims consultant for the construction industry. In the long term, I would like to research in the field of ADR in order to make it more adaptable and appealing to the construction industry. 

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

A. Someone new to the field of dispute resolution should remember the three “Ps”: patience, perseverance, and people.  

It is commonly observed that many people who are new to ADR want everything right now. Remember that it takes time for a little seed to become a mighty tree. Therefore, my advice to new aspirants is to be patient and have a systematic plan. Everything will come to you at the right moment. So, please obtain qualifications or certifications in ADR. I feel that the CIArb is one of the best platforms for developing your skillset and building strong networks.  

Start with small assignments. Learn from your mistakes and try to do better than before. Seek genuine feedback from others on your work. Focus on improving your weak areas. You should look into enhancing your problem-solving and negotiation skills. Do not hesitate to attend classes for language development or soft skills. Remember that each person probably has to go through many difficulties before succeeding, and those who persevere will see the light.  

Build a good network of people with similar interests in ADR at the same time. This will surely help with sharing ideas or opportunities with each other and developing your people skills. Also, participate in conferences and training programs organised by the CIArb. 

Finally, remember: “Arise, awake, and stop not till the goal is reached” (quote by Swami Vivekananda). 

Kunal Mishra is a Fellow of the Chartered Institute of Arbitrators. He is a Contracts Engineer at National Marine Dredging Company, Abu Dhabi, and may be contacted at kunalmishra61@gmail.com

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

Member Profile: Maria Muriel Eustaquio, Associate of the Chartered Institute of Arbitrators

We chat to Maria Muriel Eustaquio, an Associate 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 Junior Consultant for CBBG Group, assisting Quantum and Delay Experts in their assessments of arbitration matters across a variety of sectors in the construction industry.  

I started as a Quantum Data Analyst, and over time progressed to claims assessment of variations, prolongation, and disruption. 

I am fascinated by how Quantum and Delay Experts develop their assessments and present them under cross-examination. I love that every project I am involved in teaches me a different approach to my work, making each day a new learning experience. 

I have always wanted to find a field I can specialize in that is in line with what I am passionate about. I joined CBBG Group because I wanted to build on my previous experience and develop my career in the field of arbitration. Since joining CBBG group I have received a great deal of support and guidance from my colleagues, learning from their experience and expertise. I feel fortunate that in my current role I can grow in my career as well as work on my personal development.  

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

A. My interest in arbitration started back in 2008 when I began my career in Project and Construction Management at SPCastro Inc. (Philippines). I was undertaking my apprenticeship with them, and before finishing it, they offered me a job as a Project Management Staff to assist in the Design Tender stage through to Handover of Project. Eventually, my career progressed from Architectural and Civil Works Coordinator to Deputy Project Manager.  

My mentor, a Member of CIArb, and a practising mediator taught me the importance of contracts and how to implement them on-site through letters and memos, coordinate drawings and specifications, and update and monitor costs and schedules. He also imparted to me the significance of issuing accurate daily reports, letters, schedules, drawings, and other documentation, as these are vital if disputes arise.   

After four years, I tried my luck in applying for work in Singapore in order to gain international experience. I learned a lot when it comes to working with other cultures, working on the side of the subcontractor and main contractor, and was introduced to British Construction Standards and terminologies. 

When I decided to join my sister in UAE in 2014 and started working as a QS in a fit-out Company, it was easier for me to adapt. After my contract, I transferred to BIC Contracting where I worked as Project Quantity Surveyor for three years in healthcare facilities in Abu Dhabi and Dubai. There, I managed 15 to 20 subcontractors, assisted in Client Monthly Payment applications and variation works. I was transferred to Head Office afterwards, in order to assist the Commercial Director with cost reporting and other cost-related matters. This is where I had the opportunity to assist our third-party consultant with quantum data analysis for an ongoing arbitration, which fueled my interest again. I was very interested to know the purpose of the exercise I was asked to carry out, how my work would feed into the quantum report, the intricacies of the whole process, and how the expert produces a comprehensive report to tie it all together.  

In May of 2021, I was offered the Junior Consultant position at CBBG Group. I did not hesitate to take the opportunity because I knew I was on the right track for the career I wanted to pursue. I am very fortunate to have the chance to develop my skills under experienced Quantum and Delay experts and learn more about the field I want to specialize in. 

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

A. My career is very much linked with CIArb since the work and the nature of CBBG, involves expert consultancy services. 

My colleague advised me to join CIArb a few months after I joined the business. He suggested that it would help me expand my network and that I could develop my career further by being affiliated with the organization.   

I first signed up for the ‘Introduction to International Arbitration’ course and passed the assessment in October 2021. I learned a lot from that course, which increased my desire to gain an in-depth knowledge of arbitration. In the course, I learned the Arbitrator’s jurisdiction and powers, fundamental principles of International Arbitration, essentials of an enforceable award and the legal framework which helped me understand the requirement of the work that I am doing. The most interesting part for me of the course is presenting the claim and defence and the contrast between common and civil law jurisdiction. 

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

A. My most significant achievement to date is deciding to undertake an LLM in Construction Law and Arbitration. 

CIArb helped me realize there is still much to learn regarding arbitration and adjudication.  I believe that for me to flourish in this industry, it is essential that I have a more profound knowledge of construction law, procedures, principles, and practices.  

Through my years of experience in Commercial, Contracts and Operations, obtaining the LLM will enable me to be a better Expert Assistant and, eventually, an effective Quantum Expert in the future.  The knowledge that I gained from being an Architectural/Civil Coordinator to Deputy Project Manager, to Quantity Surveyor, and experience from Design Coordination at Tender Stage to Handover of projects is all useful to my position now. I know where to look at in drawings, clauses in contracts, value variations etc. I have found this industry to be a continuous learning process, in which CIArb is a great instrument to keep you updated and support your growth.  

Q. What are your aspirations for the future?

A. A year has passed since joining CBBG, and I would like to take more responsibility on the matters in which I am involved and continue my professional development. 

I enjoy absorbing information provided by my colleagues and partaking in reports and assessments.  

My long-term goals are to finish my LLM degree, obtain certification as an Expert witness and be a Quantum Expert who can assist clients to the best of my capabilities. I also aspire to be a guide to professionals who want to transition into arbitration and adjudication, in the same way that my colleagues have been for me. 

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

A.  In following this career path, a construction background will be valuable. The roles you have now will lay the foundation for your journey if you decide to pursue a career in arbitration. 

It is true when they say that progress is never linear. So, ensure that you immerse yourself in the experience and formal learning, and be proactive in your actions.  It will be hard work and will take a lot of patience and time.  However, it will be personally rewarding and intellectually satisfying.  

It is also helpful to join organizations like CIArb that can help you develop your knowledge and expand your network by attending their seminars and activities. 

Maria Muriel C. Eustaquio is an Associate of the Chartered Institute of Arbitrators. She is a Junior Consultant at CBBG Group Construction Expert Services and may be contacted on maria.eustaquio@cbbggroup.com

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

Jokamation November ’22

A joke and some information… what we like to call Jokamation

by Mohieeldin Elbana MCIArb

This edition’s Joke…

 Q. What starts with a P, ends with an E, and has a million letters in it? 
A Post Office!

…and information

Q. Do you know what is the oldest known structure in the UAE? 

The oldest structure ever found in the UAE is the remains of a building, which goes back to probably 8,500 years. Such structure was found on the island of Ghagha in Abu Dhabi. 

To read more: https://tcaabudhabi.ae/en/media.centre/news/new.abu.dhabi.archaeological.discoveries.reveal.8500.year.old.buildings..aspx?utm_source=DCT+social&utm_campaign=GhaghaDiscovery_EN

Mohieeldin Elbana is a Member of the Chartered Institute of Arbitrators and a Committee Member of the UAE Branch. He is the founder of QAF  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 November 2022

All our forthcoming courses and events.

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
29-30 November 2022 Accelerated route to Membership 
5-8 December 2022 Accelerated route to fellowship 
10 December 2022 Introduction to Arbitration (English)  

Social & other events

 DateEventEvent details
15 November 2022   Dubai Arbitration Week (‘DAW’) Conference. CIArb UAE and AIEN  
16 November 2022 YMG debate event CIArb YMG 
17 November 2022  “Horses for course: do we need prescriptive rules?” CIArb UAE and Tahkeem – Joint Event 

Credits & Contributors November ’22

The people behind our November 2022 newsletter. Thank you!

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

Contributors

Nayiri Boghossian, MCIArb
Soraya Corm-Bakhos, MCIArb 
Mohieeldin Elbana, MCIArb 
Maria Muriel C. Eustaquio, ACIArb 
Sandra Eze, FCIArb 
Kasia Halliday, FCIArb 
Dilip Masand, ACIArb 
Kunal Mishra, FCIArb 
Eman Saeed, MCIArb 

Newsletter Team

General Editor: Reshma Oogorah, FCIArb 
Accomplishments & Past Events: Eman Saeed, MCIArb 
Events & Training: Sandra Eze, FCIArb 
Articles: Farhan Shafi, ACIArb
Jokamation: Mohieeldin Elbana, MCIArb 
Members Interviews: Kasia Halliday, MCIArb, Sandra Eze, FCIArb 
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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