Editorial May 2023

By Reshma Oogorah, FCIArb

Dear Esteemed Colleagues, 

We are delighted to present to you the 8th edition of the CIArb UAE Branch newsletter, brimming with captivating articles, enlightening interviews, and updates on our activities. 

In this edition, we are fortunate to have Uditha Tharanga, FCIArb, share his expertise on one of the most discussed and complex topics in the construction industry—concurrent delays. His article unravels the complexities and offers solutions to this contentious technical matter in forensic delay analysis. 

Continuing our unwavering commitment to promoting diversity and inclusion in arbitration, we are delighted to introduce a new series dedicated to exploring the importance of diversity. Magda Kofluk, MCIArb, spearheads this initiative and contributes the first part of the series titled “Why is diversity important in arbitration?” Magda’s contribution serves as a starting point to delve into the profound significance of diversity within our field. 

Moreover, we have had the privilege of interviewing esteemed members of the CIArb UAE Branch, namely Femi Rayanmarakkar Ismail, MCIArb, Binu Karthikeyan, MCIArb, and Kate Blotskaya, MCIArb. Their experiences and insights offer a glimpse into their remarkable journeys within the realm of arbitration and ADR. 

As part of our ongoing efforts to foster unity and inclusivity, we recently organized a Newsletter Contributors Gratitude Breakfast in March 2023 to express our heartfelt appreciation for the dedication and support of all our newsletter contributors. Furthermore, in April 2023, we gathered for an Iftar, providing a joyous occasion for members of our community to come together, strengthen bonds, and celebrate the spirit of the festive season before the Eid break. 

This week, we have two exciting events lined up for you. The first is a joint panel discussion among CIArb, DIAC, and the ERA Pledge on the topic “How to get your first appointment as an expert.” The second event is a Quickfire Q&A organized by the CIArb YMG Committee in collaboration with the Society of Construction Lawyers (SCL). We are also actively setting up the second edition of our unique “Each One, Teach One” Mentoring Program, a valuable opportunity for professional growth and knowledge sharing. 

Looking ahead, we have an exciting lineup of events, initiatives, and courses planned for the upcoming months. From comprehensive training programs to thought-provoking seminars, our aim is to provide valuable opportunities for your professional development within the field of arbitration and ADR. You can read about them in our Announcements section.

As Mental Health Awareness Week/Month is observed in many parts of the world this month, I invite you to take a moment to recognize the significance of mental well-being within our profession. Our work in arbitration and ADR often involves high-stakes cases, complex negotiations, and intense professional interactions. As dedicated practitioners, we strive for excellence and often invest considerable time and energy in our roles. However, amidst the fast-paced nature of our profession, it is essential to remember that our mental health matters just as much as our professional success. 

Taking care of our mental well-being goes beyond simply achieving work-life balance. It involves actively seeking ways to nurture our emotional resilience, manage stress, and maintain a healthy mindset. By prioritizing our mental health, we can enhance our overall job performance, foster better relationships with colleagues and clients, and experience greater job satisfaction. 

Taking care of our mental health is crucial for leading a fulfilling and successful life and career. Together, let’s cultivate a culture that promotes mental health awareness and provides support on our professional journeys. 

With this, I hope my humble poem, crafted with a little help from ChatGPT, brings lightness to you, ignites gratitude for our contributors and inspires you to participate in our upcoming editions of the CIArb UAE Branch Quarterly Newsletter. 

To the authors, we owe a great deal,  
Their words enlighten, inspire, and reveal,  
To the interviewees, we extend our thanks,  
Their stories and experiences, they shared with such grace,  
To the newsletter team members, we are forever grateful,  
Their hard work and dedication, never dull,  
To all who have contributed, we say thank you,  
For your words and thoughts, they are true,  
To those who haven’t yet shared, we invite you,  
To join us and contribute, we welcome you. 
For in this newsletter, we celebrate,  
The power of words and the stories they create,  
So, let us come together, and make this a place,  
Where voices are heard, and stories embraced. 

We trust that you will find this edition both informative and inspiring.  

Happy reading! 

Warmest regards, 

Reshma Oogorah 
General Editor, CIArb UAE Branch Quarterly Newsletter 

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Reshma Oogorah is a Fellow of the Chartered Institute of Arbitrators, the Public Relations Officer of the CIArb UAE Branch and General Editor of the Branch’s quarterly newsletter. She sits as Arbitrator and works as Legal Counsel through her arbitration and legal practice, Niyom Legal.  Reshma can be contacted on reshma@niyom.legal.

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

Accomplishments & Past Events / May ’23

In this quarterly newsletter edition, 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 and worldwide. 

Accomplishments of CIArb UAE Branch 

1. On 02 March 2023, the CIArb UAE Branch cordially hosted a complimentary breakfast at Spike Bar Terrace at the Emirates Golf Club, Dubai to meet the Branch’s newsletter contributors in recognition of their efforts and express our gratitude for their contribution.  

We thank those who attended and continue to support the CIArb UAE Branch quarterly newsletter. See the social media post of the Newsletter Contributors Gratitude Breakfast: https://www.linkedin.com/feed/update/urn:li:activity:7036062053156966400  

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2. On 12 April 2023, the CIArb UAE Branch hosted an iftar gathering for all its Members at the Swissotel Al-Murooj Dubai Downtown to celebrate the Holy Month of Ramadan together and share the blessing atmosphere that this months brings.  

Thank you to all CIArb UAE Branch Members who were able to join us. See the social media post for the event here: https://www.linkedin.com/feed/update/urn:li:activity:7052521636742193152  

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Accomplishments of CIArb Branches – Middle East  

1. On 20 February 2023, the CIArb Qatar and QFC Branch hosted an in-person event titled “Mediation for Business: A Pragmatic Means to Resolve Disputes” in an effort to promote Mediation as an alternative mechanism for the resolution of commercial disputes to ratify the United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the “Singapore Convention on Mediation”), which came into force on 12 September 2020. 

Event highlights included the presentation from Wolf Von Kumberg FCIArb who discussed how mediation works for business, including the processes involved, from preparing a pre-mediation agreement to enforcing a settlement agreement between the parties. This was followed by a thought-provoking panel discussion and Q&A session with Mr. Von Kumberg and Dr. Susan L. Karamanian, moderated by Mr. Umar Malak Azmeh and was honored by the graced presence of HE Sheikh Dr. Thani bin Ali Al Thani, Sultan Al Abdulla, Ahmed Ali Al-Ansari, Noora Al-Mannai, CIArb members and supporters, industry professionals, and decision-makers in the jurisdiction. To read more about this event: https://ciarb.org/news/mediation-in-qatar/  

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2. On 03 May 2023, the CIArb Qatar and QFC Branch jointly with Burford Capital and PwC Middle East cordially hosted a seminar titled “Legal Finance for Banks and Contractors” at the Restructing Insolvency and Legal Practitioners Association (RILPA) Doha Conference, Banyan Tree, Doha. The panel of leading experts Joe Durkin, Saad Hegazy, Dawn Francis, Colin Russell and Paul Thornton discussed the current trends and the increasing use of legal finance across the GCC. To read more: https://www.ciarb.org/events/ciarb-qatar-arbitration-conference-agm/  

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Newsworthy events 

1. Changes to CIArb’s Royal Charter and Bye-laws endorsed by the Privy Council: The Privy Council approved changes to the CIArb’s Royal Charter and Bye-Laws at its meeting of 15 February 2023. The endorsement by the Privy Council follows CIArb’s September 2022 Annual General Meeting (AGM) and Extraordinary General Meeting (EGM), at which members voted in support of the governance changes. 
   
2. The changes bring CIArb’s governance in line with best practice. They also pave the way for CIArb to introduce a new Chartered Adjudicator designation for its most experienced adjudicator members. Work has started on preparing the application process and details will be shared with members in due course later this year. To know more: https://ciarb.org/news/changes-to-ciarb-s-royal-charter-and-bye-laws-endorsed-by-the-privy-council/ 
   
3. International Women’s Day 2023 #EmbraceEquity: To celebrate International Women’s Day, on 28 February 2023, Catherine Dixon, CIArb Director General and members of the CIArb attended the launch of Women in Adjudication and signed the Equal Representation in Adjudication pledge. CIArb are also signatories of the Equal Representation in Arbitration (ERA) pledge and the Equal Representation of Expert Witnesses (ERE) pledge. 
   
4. The CIArb also organized a virtual event on 8 March 2023 for leading voices in ADR and CIArb members to reflect on what equity means to them and share their experiences of equity in their professional and personal lives. The panel also discussed and explored the adjustments needed to embed and embrace gender equity. Read the full announcement here: https://ciarb.org/news/join-us-in-celebrating-international-women-s-day-2023-embraceequity/ 
   
5. The coronation of His Majesty King Charles III: The CIArb extended its heartfelt congratulations to His Majesty The King and Her Majesty The Queen Consort on the occasion of Their Majesties’ coronation on the 5th of May 2023. Catherine Dixon, CIArb Director General send a formal letter of congratulations to The King on behalf of the CIArb and all its global members. To read the formal letter: https://ciarb.org/news/the-coronation-of-his-majesty-king-charles-iii/  

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Concurrent delays in the construction industry- the necessity of a comprehensive agreement for definition and framework for identification and quantification

by Uditha Tharanga, FCIArb 

Concurrency is among the most discussed and complicated areas of the construction industry, and the identification and assessment of concurrent delays, is arguably one of the most contentious technical matters in forensic delay analysis. While, in many jurisdictions the matter is still evolving, it has been subject to different treatment under common law and civil law jurisdictions.  

However, it is evident that the major controversy of concurrency is related to its practical application in prevailing legal authorities. On immediate observation, the lack of agreement between contracting parties for a clear definition of concurrent delay and the lack of understanding of the core legal principles can be identified as primitive causes. The author has come across several cases where the above elements of concurrency are at dispute.  

Contracts’ not having clear terms 

As a foremost consideration, the author believes that many standard contract forms published till date are not sufficiently capable of catering to such disagreements. The un-amended FIDIC contracts, which are widely used in the Middle East and many other countries across the world, do not address concurrent delay in their contract terms. However, even when the concurrency is addressed in the contract, the definition, technical aspects and procedures are not captured sufficiently to avoid any disputes.  

Seeking a definition  

The term “concurrent delay” means the occasion where the project completion is overrun by two or more delay events at the same time, one being an event for which the employer is culpable and the other being an event for which the contractor is responsible under the contract. It is sometimes said that the effect of the two delays should be precisely simultaneous to be considered as a concurrent delay. This is considered a narrow definition of concurrent delay, also known as “true” concurrency.¹ However, it has been argued that ‘true concurrency’ is mostly hypothetical and will only arise in exceptional factual circumstances.²  

In line with the above definition, the SCL protocol³ in its section B.10.3 describes concurrent delay as follows:  

“True concurrent delay is the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the same time. True concurrent delay will be a rare occurrence.” 

Then, the protocol goes further and explains that more common usage of the term ‘concurrent delay’ concerns the situation where two or more delay events arise at different times, but the effects of them are felt at the same time.⁴  Although there were many subsequent definitions suggested, the one that has been put forward by John Marrin KC⁵ has been approved by the courts as a useful working definition and adopted for situations involving concurrent delays.⁶ The said definition is as follows: 

“a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency”⁷. 

As it captures key elements in defining concurrency (effectiveness of cause and effect, criticality and causative potency) it has since then been used as a reference in many subsequent disputes. However, the principles of this definition are not often seen to be adopted properly when it comes to implementation. For this reason, the result of the concurrency analysis substantially varies and often depend on the expert who carries out the analysis.  

Practical application of concurrency 

The SCL protocol is one the many practical guidelines, often being used as a reference. The most interesting discussion with regards to concurrency in the protocol is pertaining to the timing of the delay events. The SCL protocol in its section B.108 identifies four key points regarding concurrency as follows: 

1. the concurrency situation where the employer’s risk event and the contractor’s risk event occurred at the same time and their effects are felt at the same time;   

2. the concurrency situation where two or more delay events occurred at distinct times but the effect is felt within the same time; 

3. the delay must affect the completion, and by implication, both should be on the critical path and should be effective causes of delays; and  

4. CPM analysis is essential in determining concurrency. 

Although, the protocol set out some important considerations as above, in the author’s opinion, it provides few references to the form of analysis and the timing of the analysis in connection with the above concerns. Similarly, there are other issues that are related to the practical application which are not detailed therein. Perhaps, the best outcome of the SCL protocol regarding the concurrency is to encourage the use of common sense approach thereby highlighting that the margin of imprecision should be taken into account in reaching the conclusion on concurrency.⁹ The recent decision of the England and Wales High Court, Thomas Barnes & Sons PLC v Blackburn With Darwen Borough Council [2022] EWHC 2598 (TCC),  has also emphasized that courts will prefer a pragmatic, common sense approach to assessing delay, over the opinions of delay experts. 

By providing a theory to assist the practical application, the AACE International Recommended Practice No. 29R-03 (RP29R-03) introduces the concept of “literal” and “functional” concurrency which is related to the timing of the delay events occurrence. The difference inevitably depends on the method analysis as well as the duration of analysis.¹⁰  

The ‘literal’ and ‘functional’ theories are described as follows: 

 “Under the Literal Theory, the delays have to be literally concurrent in time, as in ‘happening at the same time.’ In contrast, under the Functional Theory, the delays need to be occurring within the same analysis period.”¹¹  

The functional theory seems to be more liberal in identifying and quantifying the concurrency as the delays may occur within the same measurement period to qualify as concurrent delays while the literal theory is similar to true concurrency, as defined under the SCL protocol. Under the latter theory, a delay at any point in the critical path creates a float through the entire network which makes the subsequent delay non-critical until the completion of the first delay event. It is sometime argued that the exact simultaneity is impossible. If the CPM schedule considers the “day” as the smallest unit of time, then both delays have to start on the same day regardless of the time, in order to be concurrent delays.  

Under the former theory of ‘functional concurrency’ it is possible that the employer’s delay occurring at the beginning of the month (first week) of the analysis period becomes concurrent with the contractor’s delay occurring in the last week of the update period as long as the other tests are met.¹² This way, it is common that the literal and the functional theories provide significantly different results and the practitioner who adopts functional theory will generally find more concurrency than one who adopts the literal theory. The difference in outcomes is sometimes significant. Hence, the decision as to which one of these conceptual approaches should be employed, can be dispositive of a delay dispute. 

Additionally, the discussion extends further than to the simple decision of “literal” or “functional” theory when analysing concurrency, as there are several other issues that will inevitably affect the outcomes of the concurrency analyses.  

As AACE (RP29R-03) suggests, these are the matters of:  

1. how the delay is determined (whether based on the cause or effect as they are both permitted under the protocol); 

2. the Contract’s definition of criticality and how the critical path is determined; 

3. the time period of the analysis (frequency, duration and placement of analysis periods);  

4. the order of the insertion or the extraction of delay events in connection with the selected methods of delay analysis; and 

5. whether the analysis is being performed in hindsight (retrospectively) or blind-sight (knowledge-at-the-time) or in other words whether it is being performed contemporaneously or forensically. 

Therefore, the protocol stresses on the requirement of proper agreement between parties for the definition of the concurrent delay as well as the other aspects of the CPM and the delay analysis as above. The solution is to ensure that contracts include the clear agreed terms to deal with all possible areas of disagreements related to concurrency. This should include a framework of definition as well as the detailed implementation protocol of analysis, amongst others. 

The issue of additional costs 

As regards to the matter of additional costs, the contractor fails to recover his additional cost for the duration of concurrent delay as the ‘but-for’ test of causation cannot be met. This outcome coincides with the SCL Protocol, English law and it also coincides with the conventional approach to such problems applied by tribunals in the United States.¹³ 

This could be reviewed alongside the literal and functional theories to assess whether the parties’ delay costs can be apportioned. There should also be an agreement between the parties to specify the matter of recovery of additional costs in case of delay.

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1. The Royal Brompton Hospital NHS Trust v Hammond (2001) 76 Con. L.R. 148, 

2. J Stephen Forts QC and The Hon Sir Vivian Ramsey (editors), Keating on Construction Contracts (9th edition, Sweet & Maxwell, 2012) 

3. Society of Construction Law Delay and Disruption Protocol (SCL 2017), <www.scl.org.uk> 

4. ibid Note 03, Section B.10.4

5. It is included within a paper produced for the Society of Construction Law in 2002

6. Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm)

7. John Marrin QC, SCL paper, note 1, page 2. John Marrin QC, ‘Concurrent Delay’, SCL paper 100 (February 2002)

8. Society of Construction Law Delay and Disruption Protocol (SCL 2002), <www.scl.org.uk>

9. Ibid Note 04 Section 10.11

10. AACE® International Recommended Practice No. 29R-03 FORENSIC SCHEDULE ANALYSIS TCM Framework: 6.4 – Forensic Performance Assessment < https://web.aacei.org/docs/default-source/toc/toc_29r-03.pdf

11. ibid [1, (Section 2.D.1)]

12. Ibid Note 10

13. Blindennan Construction Co. y. United States, 695 F.2d 552,559 (Fed. Cir. 1982), quoting Coath & Gross, Inc. y. United States, 101 Ct. CI. 702,714-715 (19U) 

 

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Uditha Tharanga is a Fellow of the Chartered Institute of Arbitrators and a member of the Royal Institution of Chartered Surveyors. He is a practitioner in the field of Arbitration and both a Quantum and Forensic Delay Expert in the construction field. His research interests include Construction ADR, Multi Party Arbitration and Third Party Funding in international Arbitration. He can be contacted on udtharangaw@gmail.com   

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

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

Diversity Series: Part 1: Why is diversity important in arbitration?

by Magda Kofluk, MCIArb

Diversity is a concept that is heard often nowadays, but what does it actually mean and what are people really doing to implement and create greater diversity? There is no one definition of diversity. It can refer to a greater variety of genders, ethnicities, ages and cultures, to name a few.  

UAE is a very diverse country being a home for over 200 nationalities of various ethnic origins and beliefs. Yet can we say that arbitration in the UAE is equally diverse? 

Unfortunately, I think the answer is still not yet.  But the drive towards greater diversity within arbitration practice has become more pronounced. Many stakeholders including arbitral institutions, legal practitioners and experts have launched or taken part in initiatives to help encourage and promote diversity in arbitration practice.  However, more can be done and it is important to continue the discussion.  

This new series of diversity-related publications in the CIArb UAE newsletter will address the following:  

• explore why diversity is important in arbitration; 
• put together a list of different initiatives and organisations promoting diversity including ways for underrepresented members of the community to get more opportunities; 
• talk to diversity champions about their journey and experience; and 
• welcome comments and ideas from the arbitration community in the UAE regarding diversity, amongst others. 

When we talk about diversity in arbitration we often focus on the arbitrators and especially their gender. But it goes much further than that. Diversity in arbitration applies not only to the arbitrators but also to counsel and experts.  

One of the main reasons parties decide to resolve their disputes through arbitration is efficiency including timeliness, cost-effectiveness, procedural fairness and finality.  

Diversity can help increase the efficiency of arbitration proceedings: 

• A diverse panel of arbitrators can bring a wider range of perspectives, experiences, and skills to the decision-making process, which can lead to better-informed decisions and greater acceptance of those decisions by the parties involved.  
• A diverse legal counsel team can lead to improved decision-making. Counsel with different backgrounds and experiences can offer a wider range of insights and ideas, which can lead to better-informed decisions and more creative solutions.  
• A diverse group of experts can offer a broader range of perspectives and insights that may not be available from a homogenous group. This can be particularly important in complex or cross-border disputes, where a diverse group of experts can bring a more nuanced understanding of cultural, legal, technical and economic issues. 

We address these aspects of diversity in more detail below.  

1. Arbitrators 

First, one of the biggest arguments for greater diversity within arbitration is that it will expand the pool of arbitrators available to a party or institution when they are looking to appoint tribunal members.  

It is quite common, for parties to be looking at similar or the same arbitrators, especially when their search is confined to those who have the most experience or have been in the field for the longest. This inevitably leads to a number of potential candidates being conflicted out and therefore unable to act. The encouragement of diversity in arbitration practice, will mean that there is a wider pool of arbitrators available to the parties when they are looking for candidates for nomination.  

Second, diverse tribunals can bring a range of different perspectives to the dispute. For example, a tribunal composed of arbitrators from civil law and common law backgrounds can lead to a more informed and reasoned decision.  

Third, a diverse tribunal can help to ensure that the arbitration process is fair and impartial. When the tribunal members come from diverse backgrounds, it can help to avoid bias and can lead to a more balanced decision. 

Fourth, a diverse tribunal can help to enhance the legitimacy of the arbitration process. Parties are more likely to accept the outcome of the arbitration when they feel that the process was fair and inclusive. 

Finally, a diverse tribunal can provide a role model for future generations. When young arbitrators see that diversity is valued in the arbitration community, they are more likely to be encouraged to pursue a career in arbitration. 

2. Counsel 

When counsel with different backgrounds and experiences come together to work on a case, they bring with them their own unique perspectives and ideas. This diversity can be particularly valuable when dealing with complex disputes that require a multi-disciplinary approach, such as those involving technical, scientific, or cultural issues. 

Similarly, cultural background can also play a role in promoting diversity in counsel. When dealing with disputes that involve parties from different cultures, counsel team with a diverse range of cultural backgrounds can help to facilitate communication and understanding. This can be particularly important when negotiating settlements or crafting solutions that are acceptable to all parties involved. 

In addition, diverse counsel team can also help to ensure that all parties are able to effectively advocate for their interests. By bringing a range of perspectives to the table, diverse counsel team can identify and address potential blind spots or biases in their own arguments or those of their opponents. This can lead to a more thorough and effective presentation of evidence, and ultimately, better-informed decisions by the tribunal. 

Ultimately, the value of diverse counsel team lies in the fact that it allows for a more comprehensive and nuanced understanding of the issues at hand. By drawing on a range of backgrounds and experiences, diverse counsel can offer insights and ideas that may not be apparent to a homogenous group of lawyers. This can lead to better-informed decisions and more creative solutions to complex disputes, ultimately benefiting all parties involved. 

3. Experts 

Similar to counsel, diverse experts can offer different perspectives and insights that may not be apparent to a homogenous group of experts. This is particularly important when dealing with complex technical or scientific matters, where diverse experts with different experiences and backgrounds can offer a more comprehensive understanding of the issues at hand. 

In addition, greater diversity will expand the pool of experts available to a party or institution when they are looking to appoint experts. It is especially important in niche areas of expertise. 

Further, having a diverse range of experts involved in the arbitration process can also help to ensure that all parties are able to effectively advocate for their interests. This is particularly important when dealing with disputes that involve technical or scientific issues, as parties may need to rely heavily on expert testimony to support their arguments.  

Overall, the importance of diverse experts in arbitration lies in the fact that they can offer unique insights and expertise. By drawing on a range of perspectives and expertise, the tribunal can be more confident in the accuracy and reliability of the evidence presented, and ultimately, make better-informed decisions that take into account the broader context in which the dispute is taking place. 

Conclusion 

Overall, the importance of diversity in arbitration cannot be overstated. By promoting diverse representation of tribunal members, counsel, and experts, the arbitration process can ensure that parties receive a fair and impartial ruling. Diverse representation can also lead to more creative and effective solutions to complex disputes, while also promoting greater trust in the arbitration process as a whole. As the world becomes increasingly diverse, it is important that the arbitration community recognizes the value of diversity and takes concrete steps to promote it in all aspects of the process. 

Now that we have emphasised why diversity in arbitration is important, in the next part we will explore various initiatives and organisations promoting diversity from two perspectives. One perspective is to help all of us make arbitration more diverse and inclusive. The second perspective is to provide the underrepresented members of the arbitration community with the tools to break into arbitration and progress in their career. 

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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  

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 or Reshma Oogorah.

Member Profile: Femi Rayanmarakkar Ismail, MCIArb

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

A. I am a Senior Contract Administrator at Arab Engineering Bureau, a premier Consultancy firm. I am responsible for the contract administration of multi-million projects liaising with the Contractors, Developers and Clients.  

In my current role I provide services in an advisory capacity that entail a sophisticated blend of contractual, commercial, and technical aspects. What attracted me to this role was the fact that I can utilize my technical background whilst pursuing a career that extend beyond purely technical tasks, which gives me a great satisfaction.  

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

A. I am a Chartered Quantity Surveyor and possess extensive expertise in several domains including contracts, commercial management including cost control and monitoring, claims management and dispute resolution, gained through more than 17 years of experience. 

Whilst pursuing my RICS membership, I developed a keen interest in the crucial role played by a contract administrator in ensuring efficient and effective management of contracts. It was during this time that I identified that my understanding and appreciation of contractual matters gained in my earlier quantity surveying roles, combined with my natural predisposition and attention to detail would allow me to execute the contract administrator’s role with the needed finesse. 

I decided to pursue a career in contract administration and in 2022, I was offered an opportunity to join Arab Engineering Bureau in the role of a Senior Contract Administrator.   

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

In my previous roles, I was familiar with the utilization of alternative dispute resolution (ADR) mechanisms in construction projects but it wasn’t until I decided to pursue membership with RICS, that I developed a full appreciation and realized my passion for ADR mechanisms, the potential they hold in minimizing the time and expenses incurred by all parties involved while achieving critical project objectives, among other benefits. 

My career aspiration is to advance in the field of dispute resolution, and international arbitration led me to join CIArb. 

I attended the CIArb Introduction to International Arbitration and Module 1 in International Arbitration courses delivered by the CIArb UAE Branch which provided me with comprehensive knowledge and understanding of arbitral proceedings and further fueled my interest in developing my career in the field of arbitration.     

I am confident that obtaining memberships with globally recognized professional bodies such as RICS and CIArb will elevate me to the next level where my passion and career converge enabling me to achieve the best possible outcomes. 

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

A. Attaining the Chartered status with RICS and member status of the CIArb represent a significant advancement in my professional endeavours recently, as these helped refine my expertise and broadened my comprehension of the prevailing international practices across the globe. 

CIArb has provided me with an opportunity to collaborate with the professionals who share my vision of enhancing contract and claims management practices through the adoption of ADR procedures. 

Q. What are your aspirations for the future?

A. I aspire to fulfill diverse roles such as a Mediator, Expert Witness, Quantum Expert, Claims & Dispute Resolution Consultant, Contracts Management Professional etc. while actively engaging in the arbitration process in various capacities to assist clients worldwide. 

I aim to establish a strong presence as an ADR professional, highlighting the advantages of adopting ADR procedures in both domestic and international disputes and supporting the use of Dispute Adjudication Boards (DAB) in the projects.  

Making a shift from an adversarial approach to a collaborative one that is advantageous to all stakeholders in terms of time and cost is my utmost priority. With the close collaboration of CIArb, I am confident that I will be able to establish a distinctive presence in the market in the foreseeable future. 

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

A. The career path in dispute resolution can be multifaceted which is widely acknowledged, presenting extensive opportunities based on the individual’s talents. Acquiring internationally recognized membership and partnering with global organizations can significantly shape and enhance your future prospects. 

Always bear in mind that there are no boundaries to knowledge and personal development. Remain proactive, empathetic, and compassionate throughout the entire process, and new and unforeseen opportunities will invariably present themselves.

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Femi Rayanmarakkar Ismail is a Member of the Chartered Institute of Arbitrators. She is a Senior Contract Administrator with the Arab Engineering Bureau and may be contacted on femi@aebassaf.com

To be interviewed in future Newsletters, please contact our interviewers Kasia Halliday at khalliday@thinkbrg.com or Maria Mazzawi at MariaMazzawi@eversheds-sutherland.com. 

Member Profile: Binu Karthikeyan, MCIArb

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

A. I am an Arbitration Practitioner based in Dubai, UAE. Currently, I lead the arbitration and common law litigation practice at Al Hajeya Al Noobi Advocates and Legal Consultants, a law firm based in Dubai. I act as lead counsel on complex construction arbitrations seated in Dubai and work closely with contractors, developers, and architects to strategically present their claim for the successful resolution of their disputes. 

I am an extremely ambitious lawyer with good argumentation skills, and a strong ethical code, which I believe is a good combination for an alternative dispute resolution practitioner. I enjoy arbitration practice as I find it to be an excellent match to my personality, skills and strengths. 

My interest in resolving contractual disputes in the business world, is what attracted me to this position. I feel that the resolution of disputes by  arbitration is fascinating, and also believe that a career in arbitration offers intellectual challenge, variety and prestige in the legal industry.

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

A. I started my legal career in India and relocated to UAE in 2014. I have worked on a wide variety of contracts including construction and real estate projects and dealt with various disputes.  

From early on in my career, while advising clients on different disputes and most suitable methods of resolution, I understood the significance of Alternative Dispute Resolution (ADR) and realized that I possess the skills and competencies required to provide clients with the valuable support they require during their arbitration proceedings.  From that time on, I have been instructed to represent clients in over 75 arbitration cases and eventually transitioned to being primarily an arbitration practitioner. 

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

A. When I became an Arbitration Practitioner and realized that ADR consists of limitless opportunities, I started exploring the options to broaden my knowledge in the area and connect with the international network of practitioners.   

One of my colleagues introduced me to CIArb, as an international organisation promoting the practice and professions within ADR. I joined CIArb as a member through the “experienced practitioner route” relying on the five years of my successful practice as arbitration practitioner.   My membership with CIArb gave me the opportunity to access the wealth of professional information, guidelines and guidance to support my arbitration practice.  

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

A. I represented clients in many complex arbitration cases seated in Dubai, particularly in construction, real-estate, and franchise disputes. I have been conferred with many awards and honours for impactfully contributing to the legal industry with great knowledge, reach, innovative ideas, suggestions, futuristic spirit and approach.  

The views and experiences of the global network of professionals in CIArb have helped me in developing standards, technical proficiency and insight which on many occasions enabled me to address any unexpected or difficult matters arising during arbitration proceedings, quickly and in an appropriate manner. I consider that the opportunity to work with the experts, industry leaders and the experience and knowledge gained because of that is my biggest achievement. Being part of this industry gives me confidence and at the same time motivates me to further develop my knowledge and expertise to provide clients with the highest quality dispute resolution support.  

My membership in CIArb has given me the opportunity to participate in various education and training programs in the various disciplines of dispute resolution, including arbitration, where I enjoy sharing my knowledge and real-life experiences.  

Q. What are your aspirations for the future?

A. My aspiration is to sit as an Arbitrator in the near future. As I am working to become a Fellow of CIArb, my goal is to get my first arbitrator appointment.  

At the same time, I wish to continue delivering quality services to my clients and seek new challenges as Counsel. I am also looking forward to actively participate in various initiatives organized by CIArb and join hands with like-minded professionals to expand my global network to give back to 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. ADR  opens a plethora of opportunities. Lawyers and other professionals should not limit their dreams, but instead follow their passion until they turn the impossible into accomplishments. If you are passionate about ADR and wish to follow this challenging career path, it is important to get the right advice and guidance from the industry experts. Be a good learner, attain knowledge from peers, set standards and never compromise on the quality of your services in dispute resolution.  

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Binu Karthikeyan is a Member of the Chartered Institute of Arbitrators. He is Senior Legal Counsel at Dubai Al Hajeya Al Noobi Advocates and Legal Consultants and may be contacted on advbinu@gmail.com

To be interviewed in future Newsletters, please contact our interviewers Kasia Halliday at khalliday@thinkbrg.com or Maria Mazzawi at MariaMazzawi@eversheds-sutherland.com. 

Member Profile: Kate Blotskaya, MCIArb

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

A. I am a Director in FTI Consulting’s Forensic and Litigation Consulting segment in Dubai.  

During my time at FTI Consulting, I have undertaken the role of the leading assistant to the Quantum Expert for numerous arbitration matters within the MEA region, including complex residential projects, mix-use buildings, infrastructural, oil and gas and shipbuilding projects. 

I have also been involved in the quantum assessment of various claims, including, but not limited to, prolongation, complex disruption and acceleration claims, and various scope changes for different types of projects. 

What attract me to this position are: 

• The exposure it provides, from a commercial dispute on site to an arbitration proceeding. 
• The impact of our work, from the initial review of most complex issues to the final solution.  
• The construction itself. The Middle East has been booming with incredible architectural design innovations in the last decade. Being part of the construction team has exposed me to the most unique and fascinating masterpieces of modern time. 

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

A. I am a civil engineer with MSc in construction, with 12 years of experience in the construction industry. I have had a long journey in construction industry. 

I gained a valuable site experience in the Middle East working for a contractor as a Project Manager responsible for the delivery of high-end projects on Palm Jumeirah. Following that, I worked for a larger contractor, where as a technical engineer I had the opportunity to gain experience in the commercial side of project delivery, including claims preparation. This was the catalyst that led me to pursue a Master’s Degree in Construction Law and Arbitration to achieve further career growth. 

It was after attending my first in-person, arbitration hearing that I realized I belonged to the world of dispute resolution. I welcomed the  opportunity to join FTI Consulting at a junior level. Since then, I have been promoted several times and as a Director I have client-facing responsibility and advise on multi-billion dirham projects. 

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

A. I was first introduced to CIArb whilst studying for my LLM and joined as a member after completing my first year in 2018. 

Since joining the CIArb I have been an active member, attending and participating in several events. I continue to refer to CIArb guidance notes to enhance my learning of various aspects of my day to day work.    

Part of the service I provide involves helping clients to resolve disputes by establishing a clear, commercially-driven strategy that promotes early resolution. Where litigation or arbitration is unavoidable, the experts that I work with provide support across the entire dispute life-cycle, from research and analysis to arbitration, mediation or trial. 

Understanding arbitration proceedings adds value to the process and provides comfort to all parties of the dispute. From the expert witness’s view, it is important to be familiar with different arbitration rules and methods for presenting expert evidence. In the last five years, I have been involved in cases under DIFC-LCIA, DIAC, and ICC rules. 

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

A. I consider my career path to be my biggest achievement. I came to Dubai without any local experience or a practice in international arbitration, and now give valuable dispute resolution advice to clients  using knowledge and expertise honed through years of exposure to the construction market, and work with professionals in the field on complex, high-value projects. 

Being a CIArb member gives me confidence in my chosen career and gives me access to a community of inspiring arbitrators. 

Q. What are your aspirations for the future?

A. In the immediate term, my aspiration is to establish myself as a trusted Quantum Expert. To achieve this, I will continue to expose myself to invaluable experience in practice, while also gaining the necessary qualifications. I recently achieved my membership to the Royal Institution of Chartered Surveyors (RICS) and I am now aiming to complete an expert witness course. 

In the future, I would also be keen to become 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. My recommendation to establish yourself as an expert in your field would be: 

• Never stop learning and follow recent trends in the industry. 
• Do not hesitate to be part of challenging projects. 
• Do not be afraid to share your aims and aspirations. There will be people on your way who will wish to help. 
• Do not be afraid to ask questions. 
• Find a mentor, who would give you advice on the way.  

I was involved in last year’s mentoring programme organised by the CIArb UAE Branch. For me, the mentoring programme has been an excellent opportunity to refresh my knowledge and share my experiences in arbitration with my group. It also allowed me to learn new aspects of arbitration from people in different roles than me. I found this very helpful and interesting. I was able to expand my network of industry peers and develop friendships with others who are keen to be future arbitrators. 

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Kate Blotskaya is a Member of the Chartered Institute of Arbitrators. She acts as a claim consultant / an assistant to Quantum experts in various disputes and is a Director in the Forensic and Litigation Consulting segment in Dubai at FTI Consulting. Kate can be contacted on Kate.Blotskaya@fticonsulting.com

To be interviewed in future Newsletters, please contact our interviewers Kasia Halliday at khalliday@thinkbrg.com or Maria Mazzawi at MariaMazzawi@eversheds-sutherland.com. 

Jokamation May ’23

by Mohieeldin Elbana MCIArb

This edition’s Joke…

Q. Why did the bicycle fall over? 

A: Because it was two-tired! 

…and information

Q. When did the UAE ratify the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “Convention”)? 

In 2006. The UAE issued the Federal Decree No. 43 of 2006 to confirm its ratification of the Convention. This, indeed, facilitates the process of enforcing arbitral awards in the UAE and, therefore, attracts more investments into the country. 

For further information on the list of contracting states to the Convention, you may check the following links: 

https://www.newyorkconvention.org/list+of+contracting+states

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Mohieeldin Elbana is a Member of the Chartered Institute of Arbitrators and a Committee Member of the CIArb UAE Branch. He is the founder of QAF  Legal and can be contacted on Mohieeldin@qaflegal.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 May 2023

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
21 May 2023	Introduction to Arbitration
27/28 May 2023	Accelerated Route to Fellowship (ARF)
17/18 June 2023	Applied Arbitration for Fellows Course
18 June 2023	Module 2 Arbitration
21 August 2023	Module 1 Arbitration
TBD	Module 3 Arbitration
September 2023	Module 1 Mediation

Social & other events

Date	Event	Event details
17 May 2023	Joint event with CIArb, DIAC and ERA Pledge  “How to get your first appointment as an expert”	CIArb UAE and DIAC
18 May 2023	CIArb YMG Joint event with the SCL	CIArb YMG and SCL
Sept/Oct 2023	Joint event with ADGM	CIArb UAE and ADGM
Sept/Oct 2023	DIAC/CIArb 4th “How to …” event series	CIArb UAE and DIAC
Sept/Oct 2023	Event in Abu Dhabi with ICC	CIArb UAE and ICC
TBD	Event with African Construction law	CIArb UAE and African Construction law
TBD	Joint event with Arbitral Women	CIArb UAE and Arbitral Women – Joint Event
Nov 2023	Dubai Arbitration Week event	CIArb UAE

Credits & Contributors May ’23

The publication of our May 2023 Newsletter has been possible thanks to the contribution and support of the following individuals:

Contributors

Kate Blotskaya, MCIArb 
Mohieeldin Elbana, MCIArb 
Sandra Eze, FCIArb 
Kasia Halliday, FCIArb 
Binu Karthikeyan, MCIArb 
Magda Kofluk, MCIArb 
Reshma Oogorah, FCIArb 
Femi Rayanmarakkar Ismail, MCIArb 
Eman Saeed, MCIArb 
Farhan Shafi, ACIArb 
Uditha Tharanga, FCIArb 

Newsletter Team

General Editor: Reshma Oogorah, FCIArb 
Accomplishments: Eman Saeed, MCIArb 
Articles: Farhan Shafi, ACIArb  
Member Profiles: Kasia Halliday, MCIArb, Maria Mazzawi, FCIArb 
Jokamation: Mohieeldin Elbana, MCIArb 
Events & Training: 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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