Arbitration Newsletter 2014 I Issue 2 An overview of significant International Arbitration developments by Al Tamimi & Company In this Issue Recent Developments Qatari Court Decisions on Enforcement of Foreign Awards Abu Dhabi upholds supremacy of New York Convention Saudi Arabia Establishes Arbitration Centre About us Our practice is comprised of specialist practitioners, many with an international background. Through their knowledge of the Middle East and their international and regional experience, the members of our arbitration team have the necessary expertise to provide representation at the highest level across regions and industries. Our Expertise 2013 Developments You May Have Missed We have acted as counsel and arbitrators in disputes involving parties from around the world and arising in the following fields: Arbitration Team Expands Joint Ventures, Consortia and Corporate Sale and Purchase Agreements Energy and Natural Resources (including disputes over Crude Oil, Refined Products, Metals and Minerals) International Trade Distributorship and Agency Agreements Construction and Engineering Property Disputes Insurance, Re-insurance and Mutual Assurance Issues Investment and Infrastructure Disputes arising under Bilateral Investment Treaties Sports and Related Contracts Arbitration App Al Tamimi Arbitration Activities Recent Publications In the spotlight: The Arab Arbitration Forum Dates for your Diary Launch of Al Tamimi Twitter Feed We have acted in cases involving all regional laws as well as a range of other laws, including the laws of England and Wales, Swiss and French law. The locations of our arbitrations include the Middle East, Europe, North America, Asia and Africa. Moreover, our lawyers are regularly involved in ad hoc and UNCITRAL arbitrations as well as those governed by institutional rules such as the Dubai International Arbitration Centre (DIAC), the DIFC LCIA Arbitration Centre, various Middle Eastern arbitration centres, the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Swiss Rules of International Arbitration, the International Centre for the Settlement of Investment Disputes (ICSID), the Stockholm Chamber of International Arbitration (SCC) and the Court of Arbitration for Sport (CAS).
Recent Qatari Court Decisions on Enforcement of Foreign Awards In its decision of 25 March 2014, Qatar s Court of Cassation applied the New York Convention and reinstated an award rendered in Doha in 2012 in a matter between a Qatari subcontractor and a locally incorporated joint venture between Qatari and foreign companies. The Doha Court of First Instance had set aside the award in April last year and this decision was upheld by the Doha Court of Appeal last December. Relying upon the 1990 Qatari Civil Procedure Law, the courts in both instances found that an arbitrator s judgment not rendered in the name of the Emir of Qatar, must be considered void and contrary to the public order. However in its ruling, the Court of Cassation upheld arguments by the Qatari subcontractor that the ICC award was a foreign award to which the New York Convention should apply for enforcement purposes. The Court found that the Convention did not require that a foreign award must be rendered like a court judgment in the name of a head of State such as an Emir. This decision indicates a shift in position at least with regard to foreign arbitral awards and might ultimately also lead to the correction of a much-criticised decision of December 2013 in which the Qatar Court of First Instance refused to enforce and simultaneously annulled an arbitration award rendered in ICC proceedings seated in Paris. The reason for this decision, published only recently, was that the award was not issued in the name of His Highness the Emir of Qatar. The decision was upheld by the Court of Appeal on 13 April 2014. Given the above-mentioned ruling of the Court of Cassation pursuant to which a foreign award does not have to be rendered in the name of the Emir of Qatar, it will have to be seen whether an ICC award rendered in Paris will also be reinstated by the Court of Cassation. A fuller analysis of the judgments mentioned above will appear in the next Al Tamimi Law Update. Abu Dhabi Upholds Supremacy of New York Convention A recent decision of the Abu Dhabi Court of Cassation has clarified that in relation to foreign arbitral awards the New York Convention supersedes and replaces the old provisions of the UAE Civil Procedure Code (articles 235-238). This is important because the old Civil Procedure Code provisions made it difficult to enforce foreign arbitral awards, whereas the New York Convention only allows enforcement to be refused on a limited number of narrow technical grounds. There had been some confusion because despite the UAE acceding to the New York Convention in 2006, the old provisions have never been explicitly repealed. The Abu Dhabi Court of Cassation judgment is therefore a welcome confirmation that the New York Convention alone applies to the enforcement of a foreign arbitral awards in the UAE. A fuller analysis of the decision can be found in Law Update (March 2014). Saudi Arabia Establishes Arbitration Centre On 14 April 2014, the Saudi Council of Ministers announced the establishment of a new arbitration centre to be headquartered in Riyadh and called The Commercial Arbitration Centre. It will operate under the auspices of the Council of Saudi Chambers, a federation of chambers of commerce. The new centre will handle domestic as well as international commercial arbitrations. It is expected that the Centre will also have branches outside Saudi Arabia. The initiative is part of the government s efforts to support Saudi Arabia s legislative environment to attract national and foreign investment, and it follows on from the new Saudi arbitration law issued in 2012. It will hopefully promote Saudi Arabia as an arbitration-friendly venue, as well as promoting arbitration as the dispute resolution mechanism of choice for Saudi companies. 2
2013 Developments You May Have Missed UAE Court upholds arbitration clause incorporated by reference (April 2013) Abu Dhabi Court reinforces commitment to New York Convention (October 2013) ADDCAC issues new procedural rules (November 2013) UAE Court grants attachment order whist enforcement of arbitral award is pending (December 2013) Amendment to DIFC Arbitration Law (December 2013) Arbitration Team Expands: John Gaffney, Dr Hazem Hussien & Dalal Al Houti The team has gained three new members: John Gaffney (Abu Dhabi) John is an arbitration lawyer with 20 years experience of assisting clients in relation to disputes concerning construction, property, corporate/commercial, energy, investments, IP/IT, and telecommunications matters. John has previously worked with leading international arbitration practices in Paris and London, as well as serving as a legal officer with the United Nations in Geneva. John has published widely on international dispute resolution issues. Dr Hazem Hussien (Qatar) Hazem is a qualified lawyer specialising in arbitration and litigation disputes. Hazem is experienced in handling highly complicated disputes relating to various areas such as Telecommunications, Construction, Oil & Gas, Investment, Corporate, Maritime and Shipping disputes and civil and commercial disputes in general. He has handled cases under most major arbitration centres, including the International Chamber of Commerce (ICC), the Swiss Chambers of Commerce (SCC), the London Court of International Arbitration (LCIA), the London Maritime Arbitrators Association (LMAA), and the Cairo Regional Centre for International Commercial Arbitration (CRCICA). Dalal Al Houti (Dubai) Dalal is an Associate in the Arbitration team and a qualified Kuwaiti Attorney with experience appearing before the Kuwaiti Courts. Dalal has experience in international arbitration cases conducted under the auspices of the ICC, DIAC and CRCICA, and also undertakes regular advisory work on matters of commercial law with a particular focus on the Middle East. Dalal studied at SOAS, University of London, receiving an LL.M in international commercial law with particular focus on arbitration. She is an associate member of CIArb, and is fluent in both English and Arabic. 3
Arbitration App Al Tamimi is finalizing an Arbitration App, a software tool that helps to manage arbitration cases. Essentially, it is a dashboard that an arbitrator will have open while conducting an arbitration case allowing ease of reference to procedural orders, correspondence, rules of different arbitration centres as well as the submissions of the parties well itemized and in separate folders. Al Tamimi has invested a substantial amount of resources in developing this App and it is now in the final stages of development. We have developed the App as a service from the arbitration team at Al Tamimi to the Arbitration community. However, the App is designed in such a way that Al Tamimi as a firm cannot access any information stored in the application by its users. Al Tamimi Arbitration Activities Al Tamimi hosts Breakfast Seminar during the IBA International Arbitration Day in Paris During the IBA International Arbitration Day in Paris on 14 February 2014, Al Tamimi hosted a roundtable breakfast to discuss the challenges of arbitration in the Middle East. Unusually for the early morning hours, the breakfast attracted approximately 100 people who listened to and later debated the thoughts expressed by Prof. Pierre Tercier (Switzerland) and Dr. Mohamed Abdel Wahab (Egypt) moderated by Essam Al Tamimi. Robert Karrar-Lewsley speaks at Kluwer s 2 nd Annual International Arbitration Summit in Dubai On 25 February 2014, Al Tamimi was proud to sponsor Kluwer Law International s 2nd Annual Dubai International Arbitration Summit at the Park Hyatt in Dubai. Robert Karrar-Lewsley, Senior Associate (Dubai), presented a talk on Managing Arbitration Proceedings in the Middle East, focusing in particular on where to arbitrate. The seminar attracted practitioners and delegates from all over Asia and the Middle East to network, present and expand their knowledge on Arbitration, ADR and Mediation. John Gaffney speaks at ICC Young Arbitrators Forum (ICC YAF) event in Bangalore On 18 April 2014, John Gaffney, Senior Associate (Abu Dhabi), spoke as part of a panel of practitioners addressing whether arbitral awards could be considered as investments under Bilateral Investment Treaties (BITs), a complex topic of current importance. The well-attended event was organized by the ICC YAF at one of the leading law schools in India, the National Law School of India University. John Gaffney led the panel discussion by providing an overview of the issues involved under international law in relation to the non-enforcement awards in the light of host States obligations under BITs, with particular reference to Indian BITs. 4
Recent Publications IBA Arbitration News article Hassan Arab co-authored an article for the February 2014 edition of the widely-read IBA Arbitration News. The article discussed the ramifications of a recent Dubai Court of Cassation decision in which a foreign arbitral award against the government of Sudan was refused enforcement in Dubai on the basis that the respondent was not resident or domiciled in the UAE. The judgment is considered a set-back for Dubai which has previously recognised the supremacy of the New York Convention, under which there is no such requirement. Choice of Venue in International Arbitration Essam Al Tamimi and Robert Karrar- Lewsley have authored the Dubai chapter in a new practitioner s text published by Oxford University Press and titled Choice of Venue in International Arbitration. This is the first book to provide in-depth coverage of the various considerations needed when choosing the seat of an arbitration, and contains a comparative analysis of twenty venues. ICSID Review article on Counterclaims in Investment Arbitration Anne K. Hoffmann, Special Counsel (Dubai), recently published an article in the ICSID Review Foreign Investment Law Journal on counterclaims in investment arbitration. Contrary to popular belief, respondent States can file counterclaims in investment arbitration proceedings and do so increasingly. The article discusses recent case law and addresses some issues arising from it. An extract can be found here. In the Spotlight: The Arab Arbitration Forum Civil Law Focus Group Several leading arbitration practitioners, including Essam Al Tamimi and Hassan Arab of Al Tamimi & Company, have participated in an initiative to expand the Arab Arbitration Forum, founded two years ago. The initiative, named the Civil Law Focus Group, seeks to enhance the visibility of civil law in terms of doctrine and practice in a legal environment which, although based on a civil law tradition, is perceived as being dominated by lawyers with a common law background. The initiators of this Focus Group believe that the spirit of international arbitration is based on blending the practices of both legal systems where the barriers between the two major systems are melting. An initial meeting of the Group during the Annual ICC Arbitration Conference on 12 March 2014 was well attended and will be followed up. Dates for your Diary 7 May 2014 PwC seminar Perspectives in International Arbitration, The Address Hotel, Dubai Mall For further details contact: forensic_services@ae.pwc.com 22 May 2014 ICADE-CEA under 40 Arbitration Day, Madrid Essam Al Tamimi and Anne K. Hoffmann will be speaking Further details http://arbitrationdaymadrid.com/ Launch of Al Tamimi Twitter Feed The arbitration department launched its twitter feed earlier this year. Stay current and follow @AlTamimiArb 5