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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Editorial February 2023: Celebrating Diversity

By Reshma 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

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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.

Jurisdiction of Abu Dhabi Courts v ADGM Courts

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. 

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Nayiri Boghossian is a member of the Chartered Institute of Arbitrators. She is a partner at Al Owais Advocate and Legal Consultants and can be contacted on nayiri@alowaislegal.com  

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

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

The Rise of Artificial Intelligence: A UAE Commercial Arbitration Perspective

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.  

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1. Case No. 157/2009, ruling of the Dubai Court of Cassation of 27 September 2009 

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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.

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

Non-Payment of Advance on Costs in Arbitration: An International Perspective

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. 

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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.

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

Member Profile: Tushar Khiste, FCIArb

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. 

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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

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: Magda Kofluk, MCIArb

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 16^th and 17^th 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.  

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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

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: Austen Smith, FCIArb

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. 

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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

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

Know your Committee: Dr. Zeina Obeid, FCIArb

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!  

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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  

Jokamation February ’23

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:

https://iacad.gov.ae/Documents/9of2015English.pdf 

https://u.ae/en/information-and-services/charity-and-humanitarian-work/ways-of-doing-charity-in-the-uae/donating-and-raising-funds#:~:text=Federal%20Law%20No.,functioning%20of%20non%2Dprofit%20organisations

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

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

Announcements: From February 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
May 2023	Intro to Meditation
August/ September 2023	M1 Arbitration
TBD	M2 Arbitration
TBD	M3 Arbitration
September 2023	M1 Mediation

Social & other events

Date	Event	Event details
May or September 2023	Joint event with ADGM	CIArb UAE and ADGM
May 2023	Joint event with DIAC and pledge  “How to get your appointment as an expert”	CIArb UAE and DIAC
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
TBD	Lftar with CIArb members
TBD	DAW event in November 2023

Credits & Contributors February ’23

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

Contributors

Asha Bejoy, FCIArb 
Nayiri Bhagossian, MCIArb 
Mohieeldin Elbana, MCIArb 
Sandra Eze, FCIArb 
Kasia Halliday, FCIArb 
Tushar Khiste, FCIArb 
Magda Kofluk, MCIArb 
Zeina Obeid, FCIArb 
Reshma Oogorah, FCIArb 
Farhan Shafi, ACIArb 
Austen Smith, FCIArb 

Newsletter Team

General Editor: Reshma Oogorah, FCIArb 
Events & Training: Sandra Eze, FCIArb 
Articles: Farhan Shafi, ACIArb  
Jokamation: Mohieeldin Elbana, MCIArb 
Members Interviews: Kasia Halliday, MCIArb, Maria Mazzawi, 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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Leadership Message: November ’22

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

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

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

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

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

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

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

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

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

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

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

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

I hope you enjoy reading this newsletter.  

Thank you  

Kasia Halliday  

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

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

By Reshma Oogorah, FCIArb

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

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

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

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

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

Warmest regards,

Reshma Oogorah

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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 / November ’22

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

Accomplishments of CIArb UAE Branch 

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

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

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

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

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2. On 18 October 2022, the CIArb UAE Branch and ICC UAE jointly organised a unique event titled – “Investment Arbitration and Energy Projects in the UAE and beyond” at the Dubai Chambers. The event was sponsored by Mahmood Hussain Law Firm and hosted by Dubai Chambers of Commerce. 
    
   The event highlighted international challenges in investment arbitration, particularly in relation to energy projects, providing the different international arbitration perspectives on sustainability-related disputes.
   
   Read more here: https://www.linkedin.com/feed/update/urn:li:activity:6984051154858987520  

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3. On 26 October 2022, the CIArb Young Members Group UAE (YMG), organized a successful event on how to make impactful presentations and enhance the networking skills presented by a renowned coach and international speaker, Flo Akinbiyi. The event took place at Intersect, DIFC, Dubai.
   
   Read more here: https://ciarb.org/media/22637/ciarb-uae-ymg-masterclass-invitation-intersect-difc-on-26-october-2022.pdf  

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Accomplishments of CIArb Branches – Middle East  

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1. The Ciarb Qatar Branch hosted two online events: 

• The first webinar titled – “Arbitration Clause in Purchase Orders – is it legally binding if it is not signed?” on 7 September 2022 discussing the extent of existence and validity of arbitration clauses within construction contracts and the context in which arbitration agreements are binding in the light of Qatari Arbitration Law.
  
  Read more here: https://www.ciarb.org/events/arbitration-clause-in-purchase-orders-is-it-legally-binding-if-it-is-not-signed/ 
  
• The second webinar jointly presented by CIArb Qatar Branch and the AACE Qatar Section titled “Liquidated Damages in Construction Disputes: Myth and Reality of the Sought Predictability” on 26 October 2022.
  
  Read more here: https://www.ciarb.org/events/liquidated-damages-in-construction-disputes-myth-and-reality-of-the-sought-predictability/ 

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2. In Egypt, the CIArb Eqypt Branch hosted two in-person events in September 2022: 

• On 7 September 2022, an in-person event titled “The role of the State Council’s Judiciary in Supervising Arbitration Awards Related to State Contracts”. The Seminar focused on Arbitration as an alternative method for resolving disputes other than the national judiciary.
  
  Read more here: https://www.ciarb.org/events/the-role-of-the-state-council-s-judiciary-in-supervising-arbitration-awards-related-to-state-contracts/  
  
• On 26 September 2022, with the Association for the Advancement of Cost Engineering (AACE) International in this unique event, where international claims expert, James Zack, is interviewed by Waleed El Nemr regarding the AACE International Recommended Practice (RP) 25R-03 titled: – “Estimating Labour Productivity in Construction Claims”.
  
  Read more here: https://www.ciarb.org/events/loss-of-productivity-claims-in-construction/  

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Newsworthy events 

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

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2. CIArb Trustee election results confirmed: On 3 November 2022, the Ciarb announced the election of new members to the Board of Trustees with effect from 1 January 2023 for a term of 4 years. The elected candidates are: 

• Africa – Chikwendu Madumere, FCIArb; 
• East Asia – Paul Barrett, FCIArb; 
• Middle Eastern Indian Sub-Continent – Prof Dr Mohamed Abdel Wahab, C.Arb, FCIArb; and 
• Great Britain – Andrew Miller KC, FCIArb 
• Ben Giaretta, FCIArb 
• Lucy Greenwood, FCIArb 

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

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3. CIArb Presidential Election 2022: The CIArb announces the election of its Presidents Jonathan Wood FCIArb with effect from January 2024 and Prof. Dr. Mohamed Abdel Wahab C.Arb, FCIArb with effect from January 2025. The election took place in the opening session of Congress on Tuesday 8 November 2022 at CIArb Headquarters in London in accordance with the relevant provisions of CIArb’s Royal Charter, Bye-Laws and Regulations.
   
   Read the full announcement here: https://www.linkedin.com/posts/ciarbofficial_ciarb-legal-legalprofession-activity-6995784983227285505-FWm8?utm_source=share&utm_medium=member_desktop 

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Witnesses and Taking an Oath in Arbitral Proceedings

by Nayiri Boghossian MCIArb 

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

Witnesses and Taking the Oath in Arbitral Proceedings 

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

The Requirement of Taking an Oath 

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

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

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

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

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

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

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

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

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

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

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

Final remarks

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

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

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Nayiri Boghossian is a member of the Chartered Institute of Arbitrators. She is a partner at Al Owais Advocate and Legal Consultants and can be contacted on nayiri@alowaislegal.com  

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

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

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

by Soraya Corm-Bakhos MCIArb

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

Introduction

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

Relevant legal provisions  

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

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

1. It is not sufficient for arbitrators to sign the final page of the award; both the reasoning and the dispositive parts of an award must be signed (see Case No. 233/​ 2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009);  

2. if the reasoning and the dipositive part of an award overlap or are contained in the same document, it may be sufficient for the last page of the award that contains both part of the reasoning and the dispositive part to be signed (see Case No. 233/2007, judgment of the Dubai Court of Cassation of 13 January 2008; also Case No. 156/2009, judgment of the Dubai Court of Cassation of 27 October 2009); and 

3. this signing requirement qualifies as a matter of public policy which may be raised ex officio by the court (see Case No. 218/2006, judgment of the Abu Dhabi Court of Cassation dated 17 October 2006; also Case No 156/​2009, judgment of the Dubai Court of Cassation of 27 October 2009). 

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

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

Recent local courts’ rulings 

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

Domestic awards 

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

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

Foreign awards 

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

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

1. Article III which provides in relevant part: “Each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon”; and 

2. Article V(2)(b) which provides that enforcement of an arbitral award may be refused if the competent enforcing court finds that the “recognition or enforcement of the award would be contrary to the public policy of that country”. 

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

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

Conclusion 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

Member Profile: Kunal Mishra, FCIArb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

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

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

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

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

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

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

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

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

A. I am a Junior Consultant for CBBG Group, assisting Quantum and Delay Experts in their assessments of arbitration matters across a variety of sectors in the construction industry.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

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

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

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

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

Jokamation November ’22

by Mohieeldin Elbana MCIArb

This edition’s Joke…

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

…and information

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

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

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

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

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

Announcements: From November 2022

Below is a list of forthcoming courses and events. If you are interested in any of the events please contact the email addresses provided.

Education and Training

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

Social & other events

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

Credits & Contributors November ’22

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

Contributors

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

Newsletter Team

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

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

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

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Leadership Message: August ’22

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

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

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

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

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

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

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

Branch Activities 

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

The first being a panel discussion and reception where the topic under debate was whether construction disputes were likely to remain mainstream in view of the rising momentum in technology, sports and maritime disputes.  The lively debate was moderated by Zeina Obeid, who concluded the debate by taking votes on the subject from over 100 attendees. The results: construction remains the arena with most ADR disputes and it is likely to remain that way in the near future.  This makes me realise that many industries do not utilise ADR as effectively as they could and we should continue to interact with all industries to show how ADR can be a real benefit to them. 

The second event of the week was the CIArb YMG annual global conference, which was being held in Dubai for the very first time.  The theme of the conference was “Arbitration in a Changing World”, which was apt at this pivotal juncture in the world grappling with the changes brought about by the global pandemic.  

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

Events 

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

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

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

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

Courses 

We are also organising a number of courses which include: 

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

Other Matters 

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

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

Finally 

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

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

Contact 

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

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

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

By Reshma Oogorah, FCIArb

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

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

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

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

Warmest regards,

Reshma Oogorah

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

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

Accomplishments & Past Events / August ’22

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

Accomplishments of CIArb UAE Branch 

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

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

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

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Accomplishments of CIArb 

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

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Newsworthy events 

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

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

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

 

Member Profile: Maria Mazzawi FCIArb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

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

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

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

Member Profile: Jonathan Bradbury MCIArb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

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

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

  

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

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

Member Profile: Stephen A Hibbert FCIArb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What are your aspirations for the future?

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

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

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

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

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

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

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

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

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

Know your Committee: Kasia Halliday FCIArb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. What message do you have for others who would like to join the Committee and be more active in helping the CIArb meet its goals.

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

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

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

Suspension and Termination Claims: Issues & Complexities

by John Boultwood ACIArb 

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

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

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

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

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

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

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

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

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

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

Conceptual diagram for the suspension of works​

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

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

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

Suspension often foreshadows the triggering of a termination.   

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

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

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

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

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

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

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

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

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

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

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

Conceptual diagram for the termination of works​

 

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

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

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

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

Space Arbitration as the Forum of Choice for the Space Industry

by Mohamed Amara MCIArb and Laura Yvonne Zielinski

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

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

Domestic Litigation 

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

The Dubai Courts of Space 

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

International Arbitration 

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

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

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

The PCA Outer Space Rules 

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

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

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

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

Conclusion 

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

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

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

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

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

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

by Sima Ghaffari MCIArb 

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

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

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

Third Party Funding through the Lens of the DIAC Rules 2022 

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

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

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

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

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

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

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

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

Position of TPF in Middle Eastern jurisdictions 

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

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

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

Concluding Remarks 

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

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

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

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

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

⁴ Article 11.7 of the 2021 ICC Arbitration Rules 

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

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

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

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

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

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

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

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

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

Jokamation August ’22

by Mohieeldin Elbana MCIArb

This edition’s Joke…

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

…and information

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

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

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

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

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

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

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

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

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

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

Announcements: From August 2022

Below is a list of forthcoming courses and events. If you are interested in any of the events please contact the email addresses provided.

Education and Training

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

Social & other events

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

Committee Members 2022

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

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

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

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Stuart Allan FCIArb
Honorary Secretary
stuart_allan@me.com

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Conrad Bromley FCIArb
Honorary Treasurer
conradbromley@outlook.com

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Reshma Oogorah FCIArb
Public Relations Officer
reshma@niyom.legal

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Zeina Obeid FCIArb
Events Coordinator
zeina@obeidpartners.com 

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Sean Yates FCIArb
Data Manager
seandyates@gmail.com  

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Mohieldiin Elbana MCIArb
Website Officer 
momoelbana@hotmail.com

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

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

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Asha Treesa Bejoy FCIArb
Committee Member
asha@atblegal.com

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Joe Durkin FCIArb
Committee Member
jdurkin@lcmfinance.com

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

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

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

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

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Michael Tonkin FCIArb
Honorary Secretary
MichaelTonkin@hka.com

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Credits & Contributors August ’22

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

Contributors

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

Newsletter Team

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

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

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

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Leadership Message: May ’22

by Sadaff Habib, a member of the CIArb UAE Branch Committee.

As a member of the CIArb UAE Branch, I am delighted to write the Leadership Message for the fourth edition of our newsletter. 

Last year ended on a high note with the launch of our first ever mentoring program. The CIArb offers training modules for the pathway to Fellowship in arbitration and to mediation. To supplement this, we decided to start a mentoring program so that more experienced practitioners can impart their wisdom to those seeking to establish and grow themselves.  

Most would attest to benefitting from some sort of mentoring relationship in their professional and even personal life. Mentors are like lighthouses guiding us with their lamp of knowledge and experience. Personally, I am immensely grateful to all my professional and personal lighthouses. There are a host of benefits to mentoring: it encourages and empowers personal growth and development in mentees, helps to identify and (hopefully) completes gaps in knowledge, increases self confidence and for the mentor it builds on coaching and mentoring skills.  

Our mentoring program is structured to run the course of one year. Each group is given the liberty to decide how it wishes to structure the relationship depending on the needs of each group.  

We initially planned to have four mentoring groups but the overwhelming response that we received led us to building 5 mentoring groups with four mentees, a facilitator and a mentor in each group.  

For this mentoring cycle, some groups kicked off by discussing various practice notes on arbitration. Others decided to practically navigate the arbitration process by examining the role of the arbitrator at each stage of an arbitration. 

Ultimately, the success of the process is down to its participants and particularly the mentees. I am excited to say that during this mentoring cycle the mentees have been exceptionally enthusiastic. There are plans in the pipeline initiated by one of the mentoring groups to run a moot arbitration to give participants a flavor of a ‘real life’ arbitration.  

It’s definitely not all work and no play. We recently gathered to share an iftar during Ramadan. It was fantastic for everyone to meet in person. It was interesting to learn the backgrounds of the different individuals and their experience with the process so far. The idea is to have many more of these social events.  

It is very easy to get caught up in the day to day and to loose sight of the big picture and the reason as to why we do what we do. My message to those that signed up to the mentoring program is to keep the momentum going, the more time you invest in the process and the more open you are to the process the more that you will get out of it. For those who may be stuck in a rut, reach out. Sometimes it helps to talk to someone more experienced to get a change in perspective. Last but not least, bring enjoyment into what you do and stop taking yourself too seriously. That first appointment as arbitrator or mediator or expert witness will come, it is only a matter of time.  

As my time with CIArb UAE Branch Committee comes to an end. I am grateful that I can look back to fond memories of the mentoring program and to the enthusiasm of the participants, their contagious energy and drive to do better. I can only see this program growing from height to height and I am excited for what lies ahead as it paves the way for a new genre of neutrals.  

Thank you

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Sadaff Habib is a Member of the Chartered Institute of Arbitrators and Committee Member of the CIArb UAE Branch. She sits as Arbitrator and is an Associate with Beale & Company Solicitors LLP. Sadaff can be contacted on  S.Habib@beale-law.com  

Editorial May 2022: Events in Partnership. Special Focus on the Mentoring Programme and Invitation to vote for your new Committee Members on the CIArb UAE Branch

By Reshma Oogorah, FCIArb

We, at the CIArb UAE Branch have had a busy three months since February 2022, with events focused on the Branch’s partnerships with other branches of the CIArb and other organisations locally and around the world. We have partnered amongst others with the CIArb French chapter, the CIArb Qatar Branch and the Dubai International Arbitration Centre (“DIAC”) with events organised both in-person and in online formats. In doing so, we hope to widen the reach of our Branch and of our members and connect them across geographies and with other ADR-related organisations. We invite you to continue to actively participate and share any ideas you may have to collaborate with us in continuing to build on these initiatives. Find out more about events planned in our Announcements page.  

In this Edition of the newsletter, we have a special feature on the Branch’s Mentoring Programme with contributions from some of the participants. Last year our Mentoring programme was launched under the banner “Each One, Teach One”, led by Sadaff Habib, MCIArb and Nebojsa Pavlovic, FCIArb. In her interview Aarta Karimi, MCIArb, one of the Mentors shares her views and experience with us, supported by testimonials from Facilitator, Kate Blotskaya, MCIArb, Mentee Austen Smith, FCIArb and a few words form Nebojsa who had a key role to play in the success of the initiative. There is also a Leadership Message from Sadaff, whose dedicated efforts led to the fulfilment of the initiative. As we start preparing for the next mentoring cycle, even though we have not formally started recruiting, we are accepting expressions of interests, from mentors, mentees and facilitators. 

In the last edition, I shared my thoughts and encouraged participation in the CIArb UAE Branch Committee elections. I am excited to see that we have more participants in the elections than we ever had. We have now reached the voting phase. So, please use your vote, before the deadline of 20 May 2022, to elect the five new members whom you would like to represent you on the Committee. For enquiries, please reach out to the independent elections team UK Engage on ciarbuae@uk-engage.org 

Warmest regards,

Reshma Oogorah

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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 independent legal practice, Niyom Legal.  Reshma can be contacted on reshma@niyom.legal.

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

Accomplishments & Past Events / May ’22

Accomplishments of CIArb UAE Branch 

On 7 April 2022, CIArb UAE Branch successfully hosted an in-person event held in Dubai. The speakers were Joe Durkin FCIArb, Ahmed Ibrahim, Jane Miles, Nabeel Ikram, and Helen Graham and they talked about the importance of the governing law in construction arbitrations and the key differences that arbitrators encounter in their approaches between English and UAE law.  Full details here: https://www.linkedin.com/posts/ciarb-ymg-uae-branch_throwback-adr-arbitration-activity-6925686371898540032-ktOe?utm_source=linkedin_share&utm_medium=member_desktop_web  

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On 5 April 2022, we held the first-ever joint event between Qatar and the UAE Branches entitled “Mediation: Some Topical Considerations” which took place via Zoom.  The panelists, Robert Sliwinski FCIArb, Huw Davies, and Isabel Phillips MCIArb, talked about the new laws on Mediation for the Settlement of Civil and Commercial Disputes – the “Qatar Law No. 20/2021” which was issued last November 4, 2021, and the “UAE Federal Law No. 6 of April 2021”, as well as the available guidelines and other important considerations in the mediation process.Full details here: https://www.linkedin.com/posts/ciarb-ymg-uae-branch_mediation-some-topical-considerations-activity-6924967897966469120-SrDQ?utm_source=linkedin_share&utm_medium=member_desktop_web 

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On 28 March 2022, during the Paris Arbitration Week, the CIArb UAE Branch in collaboration with the CIArb French Chapter on the topic of Strategies and Tools for Achieving Early and Speedy Dispute Resolution. During this webinar the speakers explored the tools available to an arbitrator to secure early dispute resolution (notably early disposition of issues, or putting in place an arb-med-arb procedure). The speakers also discussed current trends in the increased use of tiered dispute resolution clauses by businesses, and the use of mediation by arbitration institutions some of which even incorporate advocacy of mediation into their rules.  A special insight was given into mediation and arbitration in the era of emerging technologies like AI, smart contracts and blockchain and of the BAS (Business Arbitration Scheme) developed by the CIArb to provide simple, cost-effective, and timely resolution for disputes of low to medium monetary issues. Watch it here: https://www.ciarb.org/events/strategies-and-tools-for-achieving-early-and-speedy-dispute-resolution/  

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On Tuesday 22 March 2022, the CIArb Young Members Group (UAE Branch) hosted an evening of relaxed golf and networking at TopGolf, Dubai.  

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Accomplishments of CIArb 
  

CIArb is delighted to have been confirmed as an approved arbitration body under the Commercial Rent (Coronavirus) Act (the Act), which received Royal Assent on Thursday 24 March 2022.  The Act introduces a new statutory arbitration process for disputes relating to commercial rent arrears accrued when businesses were forced to close due to government-mandated Covid-19 lockdowns.  Read the full announcement here: https://www.ciarb.org/news/commercial-rent-act/  

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Newsworthy events (1) 

The Chartered Institute of Arbitrators (CIArb) is working in partnership with the Law Society of Scotland (LSS) to help promote the use of arbitration and other forms of alternative dispute resolution (ADR). With recent disruption to court services, ADR is an attractive option for many clients.   

We believe that one of the best ways in which we can promote the use of ADR is to provide high quality training to enable aspiring ADR professionals to acquire the necessary skills and knowledge in this field. 

Between them, CIArb and LSS provide a range of training, qualifications and accreditations ranging from entry level learning opportunities through to CIArb Diplomas and on to specialist accreditation by the LSS. Read the full announcement here: https://www.ciarb.org/news/promoting-alternative-dispute-resolution-in-scotland/  

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The Chartered Institute of Arbitrators (CIArb) and the British Virgin Islands International Arbitration Centre (BVI IAC) sign Memorandum of Understanding to promote international ADR.  The aim of this partnership is to create a positive environment for alternative dispute resolution (ADR) by, among other things, delivering CIArb education and training, working together more closely, and promoting ADR within the region.  Read the full announcement here: https://www.ciarb.org/news/new-partnership-to-promote-international-adr/  

Member Profile: Sergejs Dilevka MCIArb

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

A. I am a Senior Counsel at Galadari Advocates & Legal Consultants based in Dubai, where I predominantly focus on international commercial arbitration. 

My day-to-day responsibilities involve advising and representing clients with respect to potential or existing arbitral proceedings.  I offer a comprehensive service in this regard. My  tasks vary and may involve: 

•  advising on appropriate or existing arbitration clauses or institutions; 
• analysis and preparation of a client’s claim or defence; 
•  negotiating with the other side; 
• drafting and filing submissions; 
• attending hearings to represent the client’s position; and 
• enforcement or challenging of arbitral awards. 

In addition, I am engaged in the firm’s business development efforts, including attendance at potential client meetings, industry conferences, and other social and networking events. 

I am also increasingly involved in the training and development of my colleagues.  I regularly deliver DLAD’s CLPD course on Recognition and Enforcement of Arbitral Awards in the UAE, including ADGM and DIFC. 

I was attracted to this position by Galadari’s offer of an opportunity to head and continue developing the firm’s commercial arbitration practice. 

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

A. My career in arbitration began in 2008, when I was fortunate enough to be invited by Professor Adnan Amkhan Bayno C.Arb to join the claimant’s counsel team in Mohammad Ammar Al-Bahloul v The Republic of Tajikistan, an investment treaty arbitration brought on the basis of the Energy Charter Treaty.  At that point in time, I was already in full time employment with a company in London and had just registered for an LLM program at Queen Mary College.   

I have more than 13 years of experience in advising and representing clients in institutional  and ad hoc international and domestic arbitration proceedings.  My experience covers a wide range of industries, sectors, and types of disputes. 

Throughout my career, I have acted as counsel, tribunal secretary and arbitrator. 

These roles helped to improve my understanding of the procedural aspects and provided an appreciation for the inner-workings and dynamics within the arbitral tribunal and the arbitral institutions. 

I have also authored multiple publications offering insights on the trends and developments in international law and international arbitration. 

Last year, I was approached by Galadari, who were seeking a replacement for a retiring senior arbitration specialist.  Prior to joining Galadari, I practised at Al Tamimi & Company’s arbitration department in Dubai. 

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

A. My first meaningful contact with CIArb came around 2010, when I acted as a tribunal secretary in an arbitration hearing, which was held at CIArb’s hearing facilities at 12 Bloomsbury Square, an impressive, listed building in the centre of London. 

I joined CIArb in 2015 and subsequently became a Member by virtue of demonstrated experience. 

CIArb is an internationally revered leading institution bringing together academics and practitioners with the aim of achieving professional excellence in this field of alternative dispute resolution.  It is difficult to imagine an arbitration practitioner, who is not somehow connected to, had contact with, or at the very least aware of CIArb and the work that it does. 

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

A. My biggest achievements are my arbitral appointments, which come as a result of monumental academic and practical efforts, meticulous attention to detail, consistency, and reliability.  The trust put in me by the institutions, parties and their counsel is truly humbling. 

I think of my arbitral appointments as being part of a natural progression and continuous development as an arbitration practitioner covering work as counsel with significant experience as a tribunal secretary. 

Another achievement that comes to mind is being part of an international expert team, assembled by the Asia Development Bank, to advise the Government of Uzbekistan and prepare drafts of its newly enacted Law on International Commercial Arbitration, which was successfully enacted and came into force last year.  I feel immensely proud of the team’s contribution to Uzbekistan’s body of legislation, especially, in the field of arbitration. 

I have attended, presented at, and benefited from numerous CIArb events, held in the United Kingdom and internationally, gaining valuable insights and making professional connections.  I have also been published in CIArb’s The Resolver. 

I often find myself initiating research by visiting resources available on CIArb’s website, including CIArb’s guidelines and valuable articles in the Journal (Arbitration: The Journal of International Arbitration, Mediation, and Dispute Management). 

Q. What are your aspirations for the future?

A. Overall, I plan to continue my career in arbitration through acting as counsel and, increasingly, as an arbitrator.  In the foreseeable future, my goal is to achieve a law firm partnership position. 

My current aspirations are focused on increasing involvement in investment arbitration matters, and the new frontiers, such as space law and the metaverse. And I am presently working on my Fellowship application to CIArb. 

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

A. Apart from the usual requisites of hard work, attention to detail, humility, desire to learn, patience and so on, I would suggest first to perform a soul-searching exercise to make sure that one is certain that this is their desired path.  

If you want to be successful in this profession, it is highly likely that there will be more late nights than you can imagine now. You will have to work over weekends and holidays, you will have to cancel plans, and you will have to learn to overcome difficulties, intellectual challenges, and stress.  On the other hand, you will always be intellectually satisfied and, if you do a good job, feel a sense of achievement at the end of each task or case.  Knowing that this is your chosen career path, will make the perseverance required when aiming for success that much easier. 

 

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Sergejs Dilevka is a Member of the Chartered Institute of Arbitrators. He is a Senior Counsel at Galadari Advocates & Legal Consultants and may be contacted on s.dilevka@galadarilaw.com

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