Dubai was filled with a fresh breeze of cutting edge arbitration practitioners in November, with GAR Live, the Alexander Lecture and the CIArb International Conference being the most significant events, all preceded by a very relevant and timely lecture given by the DIFC Courts.
Whilst there was no stone unturned as far as coverage of arbitration topics is concerned, there were a number of subjects that dominated discussions and debates amongst speakers and delegates and these include:
• Wide requests for discovery and the very variant understandings of that process between civil and common law practitioners,
• expert evidence and, particularly, issues relating to the cross examination of expert witnesses;
• guerilla tactics and attempts to delay or even derail arbitral proceedings and;
• ethics in relation to conflict of interest.
Below is a look at how those topics were analysed and what messages one can take home from the deliberations of last week’s stimulating international gathering of arbitration practitioners.
Taking those subjects in turn, discovery is a process very popular in common law systems but looked at unfavourably by civil law jurisdictions. In particular, the UAE law does not provide for any compulsory process to disclose all documents relevant to a matter and the UAE Courts rarely exercise their discretion to order production of a specific (usually an original) document.
However, arbitration can, and often is, very different, particularly because under Article 212 of the UAE Civil Procedure Law (Federal Law no.11 of 1992), a tribunal can conduct proceedings (including adoption of evidentiary rules it deems appropriate) without being constrained by most of the corresponding provisions of the same law that apply to litigation.
To this wide ranging discretion, comes the disparity between inquisitorial and adversarial systems: Practitioners from the former would be unaccustomed to an ordered production of documents but very familiar with intervention from a tribunal during the examination of factual or expert witnesses.
By contrast, practitioners of the latter would be almost addicted to the discovery or disclosure process and would, by default, resort to it before even a relevant order from the tribunal is issued. At the same time, most adversarial system practitioners would feel rather uncomfortable with unilateral questions and interventions from the tribunal that are often seen as disrupting their performance in advocacy and cross examination.
In practice, a happy medium solution is usually reached, with prudent tribunals often seeking to accommodate reasonable requests for specific documents. In mock arbitral proceedings performed during Dubai’s arbitration week, it was clearly demonstrated how the immediacy and directness of arbitral proceedings can reach faster and deeper into core issues, whilst facilitating practical and equitable solutions.
One issue that was quickly agreed upon by most participants in the above events is that legal practitioners often know a lot less on the substance of a technical dispute (particularly those very often encountered in construction) than the party or tribunal appointed experts.
Hence, cross examination of expert witnesses is less spectacular than it may be in factual ones and is often more focused on the following challenges:
• expert witness’ independence and impartiality;
• his or her qualifications and authority to submit evidence as an expert and, very commonly,
• questions revolving around an expert opinion being altered, had the facts it was relied upon been different.
Again the difference between adversarial and inquisitorial systems may determine, to a certain degree, the handling of witnesses, as one system can be regularly applying a more aggressive and confrontational approach than the other.
Perhaps the most topical subject, in terms of what one encounters in UAE based arbitral proceedings, is the often innovative methods that parties (usually respondents) apply to achieve anything from a mere delay of the proceedings to a forced submission of the claimant and a withdrawal of its claim or its acceptance of a settlement on unfavourable terms.
The techniques initially chosen typically include unmeritorious challenges to the tribunal’s jurisdiction. Arbitration clauses are particularly vulnerable in the UAE and their perceived validity is subject to various conditions.
Examples include the authority of the person that signed the arbitration clause, the location of the arbitration clause in another document referred to in the contract from which the dispute arises and contradictory clauses between arbitration and litigation as the agreed dispute resolution forum.
These conditions provide a fertile ground for fierce debates on the jurisdiction of a given tribunal and can lead to confusion, particularly in instances where the members of the tribunal are not based or practicing in the UAE.
Other tactics include last minute requests for postponement of hearings that have been committed to, due to - usually predictable - reasons of alleged extreme emergency. More disturbingly, however, arbitral processes in the UAE have been disrupted by attempts to commence criminal proceedings with often crippling effects on claimants that find their personal interests conflicted with those of the legal entity they represent.
The domain of nullification of arbitral awards through the UAE Courts, should perhaps not be categorised as guerilla tactics but in the UAE, it has often been noted that domestic awards are far more vulnerable to nullification (for a variety of reasons, including the ones indicatively mentioned above) than international ones.
Conflict of interest
One of the cornerstones of arbitral practice, the tribunal’s independence, was once again a point of focus in the above events. The various criteria with which one is to determine and finally decide on issues of conflict were shared amongst members of the UAE arbitration community.
Most notably, the IBA Guidelines on Conflicts of Interest in International Arbitration formed a pivotal point of discussion. A question was raised as to whether it would be appropriate for arbitral bodies/centres to adopt a set of recognised guidelines (such as those of the IBA) rather than leave issues of conflict to a more subjective determination.
The concept of “enmity” was also discussed as an issue that under some guidelines would need to be disclosed. The question then being whether an arbitrator, in the presence of enmity by him/her towards another party or party representative, should more properly decline the entire appointment, rather than simply declare the enmity as an issue for determination.
The popularity and success of some arbitrators in their past appointments may also act in itself as a cause for conflict of interest, particularly if they have acted as members of a tribunal in previous disputes involving one of the parties.
Arbitration and its powerful catapult, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, did not escape the attention of the equally popular DIFC Courts, who in their continuous efforts to produce innovative solutions for dispute resolution, recently presented a lecture on the Practice Direction providing for the wider enforcement of Court judgments through DIFC-LCIA Arbitration Centre.
In short, the proposal made related to a clause that would render any DIFC Court adjudged amount as an arbitrable payment dispute that could be decided upon by an award and then enforced via the New York Convention, thus achieving a far wider spectrum of international enforceability than a Court judgment would.
In summary, Dubai’s arbitration week exposed three issues. Firstly, that dispute resolution is now an inevitable part and parcel of the UAE’s commercial reality. Secondly that, with Common and Civil law practitioners being present in the UAE, the country is set to become a melting pot for hybrid practices that would hopefully bring out the best from both systems. Thirdly that, given the relatively young age of arbitration as a regularly adopted dispute resolution practice in the UAE, the scope of thinking outside the box and producing innovative and effective ways of achieving a fair and practical resolution, is wider here than in other, more mature jurisdictions.
Published by Thomson Reuters West Law Gulf and Lawyer Monthly
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