Editorial February 2023:Celebrating Diversity, By Reshma Oogorah, FCIArb.
ByReshma Oogorah, FCIArb
Welcome to this seventh edition of the CIArb UAE Branch newsletter. We invite you to peruse articles on the payment of advance on costs, by Asha Bejoy FCIArb, artificial intelligence, by Farhan Shafi ACIArb, and the enforcement of an arbitral award in Abu Dhabi, by Nayiri Boghossian MCIArb.
We have also collected stories and thoughts by interviewing CIArb UAE Branch members Tushar Khiste FCIArb, Magda Kofluk MCIArb, and Austen Smith FCIArb, and Committee Member & Events Coordinator Zeina Obeid FCIArb.
Do not miss Mohieeldin Elbanna MCIArb’s Jokamation, and announcements on future training and events organised by the Branch.
Soon, we will be celebrating International Women’s Day 2023. The CIArb has planned several activities to celebrate and promote diversity and inclusion during the month of March and beyond. This year’s theme and hashtag is #embraceequity.
A diverse and inclusive community brings a range of perspectives and experiences to the table, helps to identify and address biases, and ensures equal access to the process. It also helps to build bridges between different communities, foster greater understanding, and promote cooperation and collaboration. Here some thoughts shared by CIArb members David Huebner C.Arb FCIArb and Janey Milligan LL.M, FRICS, FCIArb.
The issue of under-representation and exclusion cannot be solely attributed to situational choices, but also to systemic factors such as processes, finances, and control systems. This leads to the advancement of certain groups of people over others. As a result, we must view inclusiveness as an engineering challenge that may require redesign and even demolition. While some precincts in our sector have recognized this, others have not.
Secondly, in our efforts towards inclusiveness, we should prioritize “full spectrum” equity and avoid compartmentalizing diversity into convenient categories. Allowing diversity to be sliced and diced, compartmentalized and prioritized, would slow progress for everyone, in part by inhibiting or distorting necessary structural change. Additionally, avoiding or postponing action on diversity axes that are perceived to be less convenient or commercially advantageous, risks perpetuating strains of exclusionary biases.
We must also focus on intersectionality and acknowledge how layers of “difference” impact prospects in our sector.
Although much remains to be done in the ADR sector to eliminate biases and achieve equity, let us celebrate the progress that has been made. We invite you to take part and support the CIArb’s upcoming initiatives in promoting and celebrating diversity and inclusion.
Happy Reading!
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.
The Abu Dhabi Court of Cassation has, in a recent ruling concluded that as a result of an arbitration being seated in Abu Dhabi and conducted under the ICC Rules, the ADGM Courts have the jurisdiction to examine the application for nullification of an ensued award.
by Nayiri Boghossian, MCIArb
Abu Dhabi Courts have jurisdiction to review an application for the nullification of an award issued in an arbitration that is seated in Abu Dhabi. But, in a recent case, they declined jurisdiction in favor of ADGM Courts. Nayiri Boghossian, MCIArb examines the relevant case and the decision rendered by Abu Dhabi Courts.
In a decision dated 19 September 2022, the Abu Dhabi Court of Cassation declined jurisdiction to review an application for the annulment of an ICC award issued in an arbitration seated in Abu Dhabi. They held the opinion that the courts of Abu Dhabi Global Market (“ADGM”) have jurisdiction over the matter given the ICC’s presence in ADGM.
Summary of the Case
The Claimant, a sub-contractor, filed an arbitration against the Respondent, the main contractor. The arbitration was conducted under the ICC Rules and seated in Abu Dhabi in line with the subcontract concluded between the parties. An award was issued in favour of the Claimant (“Award”) awarding it an amount slightly over two million U.S. dollars. The Claimant filed an application for the nullification of the Award before the Court of Appeal in Abu Dhabi (“COA”) as the awarded amount was significantly less than the claimed amount of thirty million U.S. dollars.
The COA dismissed the application on the basis that it lacked jurisdiction. Since the arbitration was conducted under the ICC Rules and the ICC has a “branch” in ADGM, the COA held that the ADGM courts have jurisdiction to hear the application for nullification. The Claimant appealed the decision to the Court of Cassation (“COC”), which upheld the decision of the COA.
In reaching their decision, the COA and COC relied on Law No. 4/2013 Concerning Abu Dhabi Global Market as amended by Law No. 12/2020 Amending Some of the Provisions of Law No. 4/2013 Concerning Abu Dhabi Global Market (“ADGM Law”), and on the Federal Arbitration Law No. 6/2018 (“FAL”).
In its decision, the COC cited Article 18.1 of the FAL, which states that “The competent Court shall have jurisdiction to consider arbitration issues referred hereunder in accordance with the procedural laws of the State. The Competent Court shall exercise exclusive jurisdiction until the conclusion of all arbitral proceedings.” The decision also cites Article 1 of the FAL which defines competent court as “The federal or local Court of Appeal agreed upon by the parties or in whose jurisdiction the arbitration is conducted.”
The COC then referred to Article 1 of the ADGM Law which defines “Global Market Establishments” as “Company, any branch, representative office, institution, entity, or project registered or licensed to operate or conduct any activity within the Global market by any of the Global market Authorities according to the provisions of this law or the Global market regulations or the executive resolutions including the licensed financial Global market Establishments.” The COC also quoted the following provisions of Article 13 of the ADGM Law:
“1.The Global Market’s Courts shall be of two degrees, first instance (formed of a single judge) and appeal (formed of three judges).Without prejudice to the provisions of this law and the Global Market Regulations, the Global Market’s Courts shall be considered as courts of the Emirate, with jurisdiction over disputes and matters in accordance with the provisions of this law and the Global Market Regulations…
“7 . The Court of First Instance shall have exclusive jurisdiction to consider and decide on matters according to the following: …(d) Any request, claim or dispute which the Global Market’s Courts has the jurisdiction to consider under the Global Market Regulations…
“10. The Court of Appeal shall have exclusive jurisdiction to consider and decide on appeals made against the judgments or orders issued by the Court of First Instance.
“11. Judgments of the Court of Appeal are final and may not be challenged by any method of appeal.”
The COC then explained that under the subcontract, the parties agreed to resolve their disputes through arbitration seated in Abu Dhabi under the ICC Rules. The parties did not dispute that a fifth “branch” of the ICC had been established in Abu Dhabi when the arbitration was ongoing. As a result, the said branch was considered a representative office of the ICC and was the seat of the arbitration. The COC held that, consequently, the arbitration was subject to the laws of ADGM and the ADGM Courts were the competent forum to review a challenge to the Award.
Analysis
The COC relied upon legal provisions which do not support the conclusion it reached, and the decision is flawed in several respects.
Under the arbitration agreement, Abu Dhabi was the seat of arbitration; not ADGM. If the parties had chosen ADGM as the seat, then ADGM Courts would have had jurisdiction on the basis of the Arbitration Regulations 2015 and not on the basis of the FAL, as cited in the decision.
The fact that the arbitration was conducted under the ICC Rules does not affect the choice of seat. The choice of an arbitral institution and its rules results in the application of the rules of the relevant institution together with the arbitration law of the seat. The choice of ICC Rules cannot result in ADGM as the seat. The COC interfered with the parties’ choice by changing the seat to ADGM.
Moreover, as the court noted, the ICC case management office in ADGM (which the COC described as a branch) had not yet opened when the parties entered into their arbitration agreement. As such, it was not considered by the parties when drafting and signing their arbitration agreement. Of course, even if it had been, it would not have affected the choice of Abu Dhabi as the seat.
This case demonstrates the need for parties to carefully draft their arbitration agreements until the Abu Dhabi courts rectify the situation. Hopefully, the Abu Dhabi Courts will make further decisions which clarify the legal position and apply various relevant laws carefully and correctly.
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.
Farhan Shafi ACIArb explores whether existing artificial intelligence technology has the potential to disrupt arbitration practitioners in the UAE and perform complex legal tasks such as document review, legal research and drafting.
by Farhan Shafi
The increasing capability of AI technology in recent years has led to it being hailed as potentially one of the most disruptive technologies ever developed. This article assesses the limitations of current AI technology and examines whether it can heavily disrupt arbitration practitioners in the UAE.
Can machines think? Alan Turing posed this question almost 73 years ago. Today, a conversation with the latest generation of artificial intelligence (“AI”) models, such as OpenAI’s ChatGPT, leaves the impression that machines can, indeed, think. ChatGPT can carry on seemingly intelligent conversation, write computer code, and draft essays which do not trigger conventional plagiarism checkers. ChatGPT even shows promising legal capability. It can, amongst others, pass certain law school exams, answer legal questions and explain legal concepts (even those relating to UAE law) with varying degree of success, research key precedents, suggest arguments, and draft sample legal documents and contracts.
Such capabilities in a freely available AI model may give arbitration practitioners a pause. Can AI disrupt a large portion of their work? Is it possible to specifically train an AI model to review documents, evaluate evidence, conduct legal research, and draft briefs as a lawyer? Considering that AI can complete a task in seconds that would take a human several hours, it is a valid concern.
This article provides a high-level answer to these questions in the context of commercial arbitration in the UAE and argues that current AI technology and available data has inherent limitations that make them unsuitable for performing complex legal tasks. The article focuses on the technical limitations with data. Other challenges such as government intervention to protect unlicensed practice of law by AI are not considered. Furthermore, the discussion is limited to commercial arbitration proceedings seated in the UAE and governed under UAE law.
Technical Landscape
To understand the challenges that AI may face in performing legal tasks, it is important to understand the underlying technology used to train AI models. The latest generation of AI uses machine learning (“ML”) processes, such as deep learning through neural networks, and are driven by data. ML programs use data to learn and improve their performance over time. They rely on detecting hidden factors or patterns from training data fed to them. By applying brute force processing power to a large data sample, the model can use the data to identify an algorithm. Generally, the larger the data set, the easier it is to identify an algorithm.
Once an algorithm is identified, AI uses the algorithm to make future decisions, relying on statistics and probability calculations. In this way, AI can generate text with impressive accuracy. While the output may seem intelligent, it is essentially nothing more than the result of a probabilistic model.
In simpler terms, AI learns a general rule from large amounts of data that it can apply to future unseen data to accomplish the desired task.
Developing an AI Lawyer – The Data Acquisition Problem
For an AI lawyer to be effective, it must understand the applicable law, correctly assess what evidence is relevant, apply the legal principles to the factual scenario, and draft briefs on that basis. For each aspect, it must be fed data based on which it learns patterns and trains itself. To achieve accurate results, the AI lawyer must be trained with data, that is high-volume, has a variety of repeating fact patterns, and is correct.
To learn how to apply a legal principle to a particular scenario, the AI lawyer needs a large amount of data samples with those repeating fact patterns and correct outcomes. The amount of data required depends on the complexity of the task but could range from hundreds to millions of data samples. Once trained with this data, the AI lawyer can create a general rule which can be applied to new scenarios.
The main problem in developing such an AI model is obtaining the necessary data. Below, different sources of law in UAE are considered, and their limitations highlighted to show the unavailability of adequate data.
Legislation
The starting point of learning a legal principle in a civil law jurisdiction such as UAE is to read the relevant legislation, where the principle is contained in a single article or series of articles. Since such data would constitute a single data point, it is insufficient for the AI since it needs to train with repetitive fact patterns to recognise the algorithm. There is an alternative under which a single data source such as an article in a legislation can be used to train the AI. In this case, the legislation would need to go through data pre-processing where a legal expert will need to, amongst other things, break down each legal principle contained in a legislation on a granular level, identify the grammatical role of each word, and identify the relationships between the words while still risking an inaccurate result. The sheer cost, complexity, risk of error and time required in such a task for thousands of legal principles which may still produce inaccurate results mean thats legislations are not a practical data source to train an AI model.
Awards
To train an AI lawyer to be an arbitration practitioner, studying arbitral awards is another potential source of training data. The fatal element, however, is the importance attached to confidentiality in commercial arbitration due to which awards, and parties’ submissions are not published in most cases. For example, Article 38 of DIAC Rules 2022 stipulates that unless parties agree otherwise, all awards, orders, materials and documents must be kept confidential. Similarly, the Dubai Court of Cassation has previously confirmed that unless parties agree otherwise, arbitration is a private process.1 As a result, there are simply not enough publicly available awards to train the AI.
Judgments
If the AI model were to use judgments as training data to understand the law and related concepts, the first problem would be the language since judgments are published in Arabic while most arbitrations are conducted in English. In order to constitute sufficient data, each judgment issued by the courts would have to be obtained and then translated by a certified agency. Not only would the process be extremely expensive and cumbersome making it a futile endeavour, but the credibility remains questionable given the risk of errors in translating a large volume of documents. A workaround is to utilise existing translated judgments in legal search engines, but copyright issues aside, the data is still likely to be numerically insufficient.
However, even with the existing translations, the structure of the judgments is not ideal for training an AI model. Most readily available judgments are appellate decisions which contain a brief factual and procedural background followed by a short decision. Often, courts rely on expert evidence which is not available with the judgment. There are also very few primary court judgments available. The AI model would not have the benefit of reviewing parties’ submissions either. This makes most of the data from judgments unsuitable to train the AI as it is difficult to discern an algorithm. It is possible that where a particular law is cited often, the AI can explain what it says, but it would not be able to learn how to apply it to a factual scenario due to the limited information provided.
The above problem is further complicated by the lack of repetitive fact patterns. Two cases are unlikely to be similar and the already limited number of judgments would be divided into various sectors and areas of law. Since UAE is a civil law system, court judgments do not bind other courts either which could result into conflicting decisions on similar fact patterns. As such, it will be difficult for the AI model to discern a pattern where there clearly is none.
Thus, while training from judgment may provide limited benefit in terms of learning some commonly repeated legal concepts, the AI lawyer would still not be knowledgeable enough to handle a case itself and will lack the ability to apply any learned legal principles to factual scenarios.
Changes in Law
Another problem with training AI is the difficulty in learning new information. For AI to learn a general rule, it needs to study a large amount of data. However, legislative changes over time may render the past data useless. Consequently, each time the law is changed, the AI lawyer will be unable to apply the new law based on probabilistic methods. Since the AI lawyer would not be able to update itself in real-time with latest developments, there would be a cut-off date to the knowledge an AI lawyer holds which would make its use impractical.
The Future and Conclusion
The coming decade is likely to witness vast improvement in AI technology as giants like Google and Microsoft invest billions of dollars in AI. However, artificial general intelligence, the concept that a machine can employ human cognitive abilities, remains elusive. Current AI technology relies on massive amounts of data to make predictions which appear to be intelligent but ultimately are not. This form of AI technology will still likely have a major impact on arbitration in the UAE in the coming years. AI could be routinely used to translate documents, review and summarise documents, assist with arbitrator selection, create document bundles, and generate first draft of legal briefs. But, for now, arbitration practitioners can rest easy knowing there is no immediate threat, at least until the next big leap in AI technology.
Case No. 157/2009, ruling of the Dubai Court of Cassation of 27 September 2009
Farhan Shafi is an Associate of the Chartered Institute of Arbitrators. He works as an Associate with Blanke Arbitration. Farhan can be contacted on fs@blankearbitration.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
Asha Bejoy, FCIArb discusses the requirement for an advance on costs to initiate an arbitration, and explores the rules and remedies for non-payment of such advances by different arbitration institutions.
by Asha Bejoy, FCIArb
An advance on costs is a prerequisite for initiating an arbitration. This article delves into the rules established by different arbitral institutions regarding such advances, as well as the remedies available in case of non-payment of such advances.
Arbitration, being a private dispute resolution process, commences only after the payment of the advance on costs necessary to cover the expenses of the arbitrators and the administrative costs of the arbitration institution. Unlike courts, which are publicly funded, arbitrators rely on the advance on costs to cover their fees. Most major arbitration institutions require that the parties pay their share of the arbitration fee before the dispute is heard. For instance, Article 37(2) of the International Chamber of Commerce (ICC) Rules 2021 requires the claimant and the respondent to pay the advance on costs fixed by the ICC Court in equal shares.
If one party, typically the respondent, refuses to pay its share of the advance on costs, the claimant has no choice but to pay the advance on costs for the respondent and for itself. This is because, if an agreement contains an arbitration clause, courts typically do not have the jurisdiction to entertain such a case. The claimant’s only option in this situation would be to go through arbitration, incurring fees and seeking a refund from the opposite party, in case of a non-payment of the advance on costs by the opposite party. An arbitration can only proceed if the parties have sufficient funds for paying the arbitration fees. This has led to an undesirable situation where certain parties, usually the respondents, use non-payment of advance on costs as a strategy to discourage the claimant from pursuing its claims, especially when they know that the claimant is struggling financially. This strategy is aimed at forcing the claimants to withdraw their claims due to the increase in advance on costs they will have to pay. Although this tactic is often frowned upon by arbitral tribunals, as it is a direct violation of procedural rules, it is still used as an attempt to discourage claims.
Regulations and Remedies under International Chamber of Commerce
The International Chamber of Commerce (ICC) Arbitration Rules 2021, include a provision in Article 37, for an “Advance to Cover the Costs of the Arbitration“. Article 37(5) of the ICC Rules specifically addresses situations regarding non-payment of advance on costs. It states, “In all cases, any party shall be free to pay any other party’s share of any advance on costs, should such other party fail to pay its share”.
The ICC Rules have several remedies in place if one party fails to pay their portion of the advance on costs. For instance, as per Article 37(6) of the rule, there is a two-step process. In cases where the request for an advance on costs is not complied with, the Secretary General may direct the arbitral tribunal to suspend its work, and a time limit of at least 15 days is set for payment. If payment is still not made, the relevant claim is deemed to have been withdrawn, but the decision may be appealed.
The UAE Perspective
When compared to more developed jurisdictions such as the US, UK, Europe, and Asia, arbitration is considered relatively nascent in the Middle East. The United Arab Emirates (UAE) introduced a comprehensive arbitration law in 2018, in line with the UNCITRAL principles through the enactment of Federal Law No. 6/2018. Consequently, parties from the UAE may still be unaware that the arbitration process has a legally binding effect. This is particularly true where respondents often view the payment of the advance on costs as the responsibility of the claimant. It is not uncommon for respondents to refuse to pay their share of the advance on costs.
Different arbitration institutions in the UAE have different approaches to the advance on costs remaining unpaid.
Article 3 of Appendix I of the DIAC Arbitration Rules 2022 deals with payment of the advance on costs for arbitrations under DIAC arbitrations. As per Articles 3.3 and 3.4 of the aforementioned provision, either party can make payments for the other party’s share of the costs for the arbitration which is necessary for the continuation of the arbitration at any point. These payments will be included as part of the total costs of the arbitration, and the party who made the payment can seek reimbursement through the tribunal by requesting an award on costs in accordance with Article 36.2. If a request for payment of the costs remains unfulfilled, the issue will be brought before the Arbitration Court to establish a final deadline for making the payment. The claim or counterclaim will be considered withdrawn if payment is not fulfilled within this deadline.
According to the Procedural Regulations on Arbitration under Article 39 of the Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) 2013, the parties to the arbitration shall both equally deposit to the arbitration centre, the fees for the arbitration at the commencement of the arbitration, and the final award shall determine which of the parties shall bear the fees and in what proportion. If one of the parties fails to pay its share of the fees, the party who has an interest in arbitration can loan the defaulting party’s share of the fees to the arbitration centre. However, if all parties involved fail to make the payment, the arbitral tribunal may choose to (i) continue with the arbitration, despite the non-payment risk, (ii) determine which party should be responsible for the outstanding fees and in what proportion, or (iii) decline the arbitration case.
Different approaches to Advance on Costs Payment
The Contractual Approach
The proponents of the contractual approach argue that paying advance on costs in arbitration is a condition agreed upon by the parties when they agreed to incorporate rules of the arbitration institution that provides for equal sharing of advance of cost into the contract. This obligation is seen as an obligation owed by the parties to the contract to each other and an extension of the agreement to comply with the rules of the arbitral institution, which includes paying for their portion of the advance on costs. Therefore, if one of the parties does not fulfil their obligation to pay for their portion of the advance on costs, it is then viewed as a breach of the arbitration agreement. According to this approach, the responsibility to pay advances on costs is mutual between the parties, and it is derived from their arbitration agreement.
The Procedural Approach
Advocates of the procedural approach contend that the responsibility to pay an advance on costs in arbitration stems from the procedural obligation. According to this theory, the agreement to arbitrate is a separate contract and it is a contract that gives rise to procedural obligation. By incorporating rules of an arbitral institution by reference, the parties have agreed to be governed by such rules. This is seen as an obligation owed by the parties towards the arbitral institution not to themselves. In instances where a party fails to pay advances on costs, it is for the arbitral institute to decide this question as it is administrative in nature. According to this school of thought, the arbitral tribunal cannot render a decision ordering the defaulting party to pay the advance on cost as it is not within their authority.
The Good Faith Approach
There is a third school of thought which says the responsibility to pay an advance on costs is considered an obligation based on good faith, which essentially means that the parties have the commitment to move forward with the proceedings in good faith.
Conclusion
To conclude, where a party declines to pay their share of the advance on costs in an arbitration, most institutional rules allow for the other party to make the advance on cost for the defaulting party. If this is not fulfilled, the proceedings may be suspended, or claims and counterclaims of the the defaulting party may be considered as withdrawn. However, not all institutional rules explicitly empower the arbitral tribunals to issue a partial award for reimbursement of the advance on costs. The paying party generally has no choice but to pay for the advance on costs on behalf of the non-paying party, and these costs may typically be recovered in the final award. Claimants must prepare for the worst-case scenario and go ahead with arbitration while considering the possibility of the respondent failing to make the payment. It is recommended that parties carefully review the arbitration clause to ensure that it explicitly provides costs of arbitration to be equally borne by the parties and to choose those institutions that have beneficial provisions in terms of recovering the arbitration costs. International commercial arbitration can benefit greatly from a harmonized approach to this issue, and continued attention should be given to this topic, in order to promote the growth and development of arbitration as an effective means of resolving disputes.
Asha Bejoy is a Fellow of the Chartered Institute of Arbitrators. She is a lawyer and runs her legal consulting business in the UAE under the brand ATB Legal and can be contacted on asha@atblegal.com
The views expressed in this article are those of the author and do not necessarily reflect those of the Chartered Institute of Arbitrators.
We chat to Tushar Khiste, a Fellow of the Chartered Institute of Arbitrators
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I am a Construction Project Manager, an aspiring ADR Practitioner (Arbitrator, Mediator and Adjudicator) and an Academic. Currently, I am working as Head of Real Estate Development Projects at Vintage Global Developer LLC, a real estate developer based in Dubai. I work closely with stakeholders such as consultants, architects, designers, contractors, vendors, local authorities and internal departments in managing and delivering projects that meet the set standards and expectations. I am also a member of the steering committee within the organization for taking strategic decisions on project feasibility considering the goals and objectives of the firm.
I got exposed to contract administration at an early stage of my career and developed a keen interest in contracts. As disputes commonly occur on construction projects, I encountered them very early on in my career. I found the process of avoiding and resolving disputes very fascinating as well as worthwhile for both parties, and realized that I have a natural inclination for alternative dispute resolution which was the catalyst for my career development in the world of ADR.
My interest in sharing knowledge with others has led me to become an academic, trainer and coach. I am an Adjunct Faculty at Amity University Dubai where I teach key modules of an MBA programme in Construction Project Management. I also provide training in Project Management, Risk Management, Planning and Scheduling, Cost Management, Project controls, Procurement, Contract Administration, Claims, Dispute Avoidance and Dispute Resolution.
Q. When and how did you get to this position?
A. I am a qualified civil engineer and have been working in the Middle East (UAE, Qatar, and Oman) for 19 years now. I started my career as a site engineer and have progressed to the position of head of projects. During my career, I have worked on a variety of construction and real estate development projects such as mixed-use, airport, air hangar, hospitality, sports club, palace, mosque, industrial, etc. I have performed all roles on the projects, including those of the employer, the consultant (engineer) and the contractor.
During my role as a contractor, I acquired robust, “hands-on” knowledge about construction methodologies, planning and scheduling, resource optimization, team development and site management. Whilst working as a consultant, I got to understand the significance of contract administration, quality management, and client care. My role as an employer’s project manager enabled me to experience all stages of a project life cycle – from conception till completion.
These roles enabled me to acquire different perspectives and shaped me into a seasoned practitioner. The training and experience that I have gained in these various areas have helped me reach where I am. However, I also recognize that my success would not be possible without support from family, colleagues, and mentors. My career trajectory has progressed horizontally (from working for contractor to consultant, to employer) as well as vertically (from being a site engineer to project manager, to head of projects), and I have thoroughly enjoyed this journey.
On the way, I have earned several globally recognized professional credentials from Project Management Institute (PMI, USA) such as Project Management Professional (PMP), Risk Management Professional (PMI-RMP), Scheduling Professional (PMI-SP) and Agile Certified Practitioner (PMI-ACP).
Q. How is your career linked with the CIArb and at what point did you join the CIArb?
A. My career is closely connected with the CIArb. I learned about CIArb in 2016 while I was exploring available options for pursuing a masters in construction law and dispute resolution. I immediately decided to become a part of the CIArb community, as the institute is a leading international centre of excellence for the practice and profession of Alternative Dispute Resolution. I intentionally chose an MSc program that was accredited by the CIArb. In 2018, I was admitted as a Member by the CIArb. I studied the Award Writing module as a part of my MSc program, following which I successfully passed the peer interview and I was upgraded to Fellow by the CIArb.
CIArb gave me a platform for networking with like-minded professionals and practitioners within the wider ADR community. While doing my MSc Dissertation on ‘Time Bar Notice Provisions in Construction Contracts’, I was advised by my Dissertation Supervisor to have at least 100 survey participants and 10 interviewees having diverse backgrounds such as Engineers, Lawyers, ADR Practitioners, etc. for my research. The solid network of contacts which I had developed through CIArb helped me in achieving this. My research received ‘Masters Dissertation of the Year’ award from the University and also a prize from the Society of Construction Law UK.
CIArb has allowed me to enhance my knowledge and learning and has given me recognition in the ADR community. The FCIArb credential has also helped me in qualifying for empanelment as an Arbitrator with other reputed ADR institutes and centres.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. My major achievements in the recent past are completing the MSc in Construction Law and Dispute Resolution, receiving CIArb Fellowship and instigating a career-path in ADR practice. My association with the CIArb, and the ADR knowledge that I have gained, have helped me in avoiding and resolving disputes on my projects more effectively and efficiently. I also feel a sense of accomplishment when I am passing on my knowledge and experience to others while teaching at the university and delivering trainings. It gives me the opportunity to meet new people and establish more connections.
Q. What are your aspirations for the future?
A. I am looking forward to receiving my first appointment as an Arbitrator. I understand that patience is required for getting a breakthrough and I will keep trying to achieve this goal. As a lifelong learner, I am keen to seek new challenges to advance and grow my knowledge. I am also looking forward to joining the CIArb’s mentorship programme to learn from more experienced practitioners. Networking is something that really fascinates me, and I will be expanding my network within the ADR community and beyond.
My long-term aspirations are to establish a career as a renowned Arbitrator, Mediator and Adjudicator. Moreover, I would like to continue contributing to Academia and give back to the profession and the community.
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 of utmost importance to first decide what is to be achieved and set your goal accordingly. Once you identify a target, a plan must be prepared to reach the target. Taking that first step is often the most challenging task, hence you should get started somehow. It is always better to seek guidance and support from colleagues or mentors who have achieved it. Continuous learning is very essential for personal growth as well as career progression. You must constantly look out for areas of improvement and create an appropriate formal or informal learning plan based on this gap analysis. I have been able to gain recognition within my organization, peers, and the industry due to my passion for learning.
Tushar Khiste is a Fellow of the Chartered Institute of Arbitrators. He is Head of Real Estate Development Projects at Vintage Global Developer LLC and may be contacted on tushar@tusharkhiste.com
We chat to Magda Kofluk, a Member of the Chartered Institute of Arbitrators
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I have recently joined Stephenson Harwood, as a managing associate, following 12 years at White & Case in Warsaw, Doha and Dubai. I act as lead counsel on complex construction arbitrations, and also advise clients on strategy and pre-arbitration claims management.
I have acted for contractors, developers, and government entities in relation to a variety of high-value construction projects. I have significant experience in dealing with highly complex technical issues in disputes and working closely with experts.
I joined Stephenson Harwood because my role there, entails the type of work which allows me to progress my career in my desired direction. I continue working on disputes related to some of the landmark projects in the region. I advise on various claims including delay, prolongation, disruption, variations, defects, termination, final account etc.
After my first few months at the firm, I am convinced that it was a great decision, and I am very well equipped and supported to service some of the largest and most complex construction disputes in the region.
Q. When and how did you get to this position?
A. My interest in arbitration started when I participated in the 16th and 17th Willem C. Vis Moot Commercial Arbitration as a law student. Following the Vis Moot, I went to London to join WilmerHale for a three-month internship. After I qualified as a legal advisor, on my return to Poland, I decided to pursue my career in arbitration. At that time, most arbitration cases were related to construction disputes. Through working on those, I discovered that construction is my passion.
While working for White & Case in Warsaw, Poland, I did a 4-month secondment in Doha, Qatar. I was amazed by the complexity and scale of projects in the region and decided to relocate to the Middle East permanently. I lived in Doha for 2 years and then moved to Dubai, where I worked at White & Case from May 2016 to October 2022. Last year, I felt ready for a new challenge and accepted to join Stephenson Harwood to help strengthen their construction disputes practice in the Middle East.
Q. How is your career linked with the CIArb and at what point did you join the CIArb?
A. I joined CIArb as a very young practitioner to broaden my knowledge of arbitration. I became an associate in 2011 and participated in the Advance Level Training for Counsel in November 2013. My professional and personal commitments made it challenging for me to be an active member for many years. However, I have recently been able to become more involved again.
The CIArb UAE branch is very active, has a lot of interesting initiatives and I am looking forward to actively contribute to the community.
In the years to come, I want to pursue my career as an arbitrator. For that reason, I decided to apply for CIArb Fellowship, which I believe will provide me with the recognition within the industry necessary to obtain my first arbitrator appointment.
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 that I have acted on a wide range of complex multi-billion and multi-million international arbitrations, particularly relating to those in the construction, infrastructure, real estate, transportation, and energy sectors. My practice includes disputes related to major international projects, such as high-rise towers, infrastructure, power plants and rail. I have gained significant experience working in several jurisdictions and with lawyers all around the globe including many of the industry leaders.
I am passionate about my work, and I have managed to turn the tide in many disputes, due to my willingness to explore complex technical details and outside-the-box thinking.
Being a part of CIArb allowed me to have access to various training programmes and a network of professionals willing to provide guidance.
Q. What are your aspirations for the future?
A. I want to continue serving my clients in the best way I can. I also want to help grow Stephenson Harwood’s construction disputes practice and be a role model for my younger colleagues.
I am a passionate advocate for diversity and inclusion, and I am actively involved in supporting younger colleagues by serving as a mentor in various mentorship programmes.
At the same time, I am working towards becoming a Fellow of CIArb and in pursuing my career as an arbitrator.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. Believe in yourself and get involved in the industry. Some examples from my own experience include asking someone to be your mentor, speaking at a conference, organising an event or applying for an internship at an arbitral organisation.
There are lots of opportunities to gain experience or develop your skills in international arbitration. It is a very competitive field with a lot of distinguished practitioners but remember that they also had to start somewhere and were once in your shoes. So just believe in yourself and follow your dreams. Patience and perseverance are key.
Magda Kofluk is a Member of the Chartered Institute of Arbitrators. She is Managing Associate at Stephenson Harwood Middle East and may be contacted on Magda.Kofluk@shlegal.com
We chat to Austen Smith, a Fellow of the Chartered Institute of Arbitrators.
Q. Tell us a little bit about your current role and what attracted you to this position?
A. I am a Senior Associate, Architect Expert Witness at Hawkins based in Dubai. I undertake expert witness work with a focus on defects in architectural design and construction. I am also a UK registered and Chartered Architect and Chartered Construction Manager.
I began my architectural career in the UK and have been fortunate to work on a number of major UK and international transport projects including Heathrow Terminal Five, Pulkovo Airport in St Petersburg, London Bridge Station, Sydney Metro West and Oak Old Common HS2 Interchange.
Completing the King’s College Master’s in Construction Law and Dispute Resolution fueled my desire to get involved in the legal side of construction. I decided that undertaking expert witness work was a good entry into the field with the hope that it can eventually grow into arbitration roles.
Q. When and how did you get to this position?
A. I relocated to Dubai in 2016 to work for an architectural practice where I eventually became Regional Leader for Transport. In 2021, I transitioned into expert work. Joining Hawkins has allowed me to pursue a career which combines my two passions: architecture and dispute resolution. After a comprehensive interview I was offered a position to help Hawkins grow their Built Environment expert team in the region. Since joining, I have been appointed for numerous cases including issues related to floor failures, and damage caused by condensation. I have also opined on compliance with building codes, and contractual scope of work.
Q. How is your career linked with the CIArb and at what point did you join the CIArb?
A. I undertook my Royal Institute of British Architects Part 3 examination at a different university to where I had completed my Part 1 and Part 2. This meant I did not gain a master’s degree. To help my career progression, I decided to undertake a master’s degree in a related field.
I discussed options with my employer at the time and a director recommended the Master’s in Construction Law and Dispute Resolution at Kings College in London, which he had completed himself. It was only after I was accepted onto the course, that he shared with me that this course was the hardest thing he had done. He was right; the course was challenging but I thoroughly enjoyed it and it ignited my interest in the legal side of the construction industry and arbitration.
During the course, I took an additional module which enabled me to take the CIArb award writing exam and become a Member of the CIArb. Taking this additional module also entitled me to apply for fellowship. I decided to attend the fellowship interview and was delighted to become a Fellow in 2012.
Q. What has been your biggest achievement and has being part of the CIArb helped you realize it in any way?
A. Undertaking my master’s degree part-time whilst also simultaneously delivering London Bridge Station project during its life construction phase is one of my notable achievements. When the contractor’s team discovered that I was studying Construction Law, I gained a lot more respect from them, probably due to the fact that the contractor’s project lead had also completed the same course.
I accredit attaining CIArb fellowship to have played a major part in my career progression and in achieving my current role.
Furthermore, attaining fellowship status with CIArb has enabled me to successfully register and be included on the roster with the Saudi Centre for Commercial Arbitration.
Q. What are your aspirations for the future?
A. In the immediate future, my aspiration is to establish myself as a trusted architect expert witness. Besides my existing cases, I have been writing articles, giving webinars, speaking at events and providing CPD to law firms. In the medium term, I hope to gain experience in the arbitral process either as an arbitral secretary or through a pupillage. The long-term goal is, of course, to get my first arbitrator appointment.
Q. What advice do you have for someone new to the industry / or someone who would want to follow this career path?
A. In terms of expert witness work, the first point to note is that you need to have sufficient experience within your related discipline. It is also worthwhile to undertake a specific expert witness course.
For arbitration, I suggest both undertaking the CIArb courses and attending as many events as possible; this will not only strengthen your knowledge, but also grow your network.
I also recommend either getting involved in the CIArb UAE branch’s mentoring scheme or finding your own mentor who can guide you and provide advice. I was involved in last year’s CIArb UAE branch’s mentoring scheme as a mentee. This acted not only as a refresher but expanded my arbitration knowledge and enabled me to expand my network.
Austen Smith is a Fellow of the Chartered Institute of Arbitrators. He acts as expert witness and is a Senior Associate with Hawkins. Austen can be contacted on Austen.smith@hawkins.ae
We have a quick chat with Dr Zeina Obeid, a Fellow of the Chartered Institute of Arbitrators, Committee Member of the CIArb UAE Branch and leader of the Branch’s events
Q. Tell us about you and how you landed on the CIArb UAE Branch Committee?
A. I am Partner at Obeid & Partners (Dubai, Paris, Beirut) where I practice in the litigation & Arbitration Department. I have acted as counsel in major international arbitration cases across the Middle East and North Africa region and sat as arbitrator in several domestic and international arbitrations, both ad hoc and under international institutional arbitral rules, including those of the ICC, DIAC, LCIA, CRCICA, BCDR-AAA, and DIFC-LCIA. I hold a PhD from the University Panthéon-Assas (Paris II) in France on the topic of “setting-aside arbitral awards in the Arab Countries” and an LLM from Columbia University in New York.
I have been and continue to be significantly involved in the CIArb activities as fellow and tutor, member of the CIArb Approved Faculty List. When I moved to Dubai with my firm which opened a branch here, I was keen to join the CIArb UAE Branch Committee and contribute to its continued growth in this jurisdiction.
Q. How has your experience been so far and what have been your contributions since joining?
A. The CIArb UAE Branch is a very active and dynamic branch. It has been and still is a pleasure to be part of the committee working with a group of professionals coming from different backgrounds, with significant expertise and who are all collectively engaged in supporting the branch and ensuring its continued success at different levels.
I have been particularly involved in the organization of branch events. We have taken a number of initiatives to involve our members and organized several successful events such as the two flagships CIArb conferences during the Dubai Arbitration Week Conference in 2021 and 2022. We were also keen to build collaborations with other institutions such as DIAC and have accordingly introduced the “how to events” series, which received very positive feedback. We also worked on enhancing our relationship with other CIArb branches by organizing webinars in collaboration with the Iberian Chapter and the CIArb Qatar Branch. Our events tackle several topics from arbitration, to mediation to other sector-focused topics such as construction, oil & gas, mining, maritime and technology disputes. Our aim is to involve our members as much as possible and tackle all hot topics in the dispute resolution arena. We have many other events in the pipeline during the course of this year and very much encourage you all to follow the CIArb newsletter and upcoming events.
Q. What are you seeking to achieve during your time on the Committee?
A. In my role as event coordinator, my aim is to promote the CIArb as a leading educational institution in dispute resolution. I am seeking to attract practitioners, who are not yet members, encourage them to join the CIArb community and see the benefit of being part of this great professional network. I am also looking forward to consolidate collaborations with other institutions, participate in spreading education, and ensure that the branch is at the forefront in tackling the latest developments in our field.
Q. What does the CIArb strategy 2021-2023 represent for you?
A. The CIArb strategy is an important milestone taken by the institution which shows the institution’s will and adaptability to a changing world. The CIArb strategy is a very positive step that reassures its members that they are part of an institution that is adapting to the changes and challenges of the new era, an institution that is innovative and that would not hesitate to the lead in putting into place a plan to remain a competitive and pioneer institution. This also means that each member has a key role to play in pulling together their efforts to help the institution meet its goals.
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. I highly encourage all practitioners and especially young practitioners to join CIArb. It is a wonderful community, a great opportunity to meet likeminded practitioners, to network and to be part of an evolving institution. In short, don’t hesitate to get involved!
Zeina Obeid is a Fellow of the Chartered Institute of Arbitrators and Event Coordinator of the CIArb UAE Branch. She is a Partner with Obeid & Partners and can be contacted on zeina@obeidpartners.com
A joke and some information… what we like to call Jokamation
by Mohieeldin Elbana MCIArb
This edition’s Joke…
Q. What 10-letter word starts with a gas?
A: Automobile
…and information
Q. Is it permissible to raise and collect donations in the UAE?
It is not permissible fund-raise, collect donations, or even announce or market such activities by any means, without the relevant permissions or approvals from the UAE competent authorities.
Under the Federal Law No. 3 of 2021 Concerning the Regulation of Fundraising Activities, fund-raising is restricted to certain entities only and shall not be done by natural persons.
In Dubai, the written approval of the Islamic Affairs and Charitable Activities Department(IACAD) is required before asking for donations.
In case of violation, a hefty penalty of imprisonment and/or a fine may apply.
For further information, you may check the following links:
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.
CIArb UAE Branch News 