1. I have previously had occasion to express my views on the place occupied by arbitration in the Arab-Islamic legal culture and the characteristics traditionally inherent in arbitration in that context prior to legislative reforms in most of the States belonging to the Arab-Islamic world. 1

2. The main particularities of the traditional Arab-Islamic arbitral culture can be summarized as follows:

(a)Islam recognizes arbitration in its broadest sense as the normal method of restoring peaceful harmony at all levels of human relations. The Koran expressly urges believers to grant priority to amicable settlement through recourse to one or more arbitrators (Hakam), thus providing moral support to a deeply rooted ancestral tradition dating back to pre-Islamic civilization.

(b)The Arab-Islamic concept of arbitration included an important component of conciliation aimed at accommodating the conflicting interests through a win-win approach based on fairness and justice without having to abide by a given rule of law or follow an established procedural system.

(c)In that context, the 'semi-arbitrator'always had to be chosen by the parties themselves, after the dispute had arisen, from among those people personally known to and trusted by both of them. Consequently, under the influence of the rules formulated by Islamic jurists during the seventh and eighth centuries and which remained unchanged until the last half of the twentieth century, the binding force of an arbitration clause (clause compromissoire)[Page247:]

dealing with potential future disputes was inconceivable, and the chosen arbitrator had to be treated as an unpaid agent who could be freely revoked by either party at any moment before rendering his decision. It was thus hardly possible for an arbitrator/conciliator acting in accordance with traditional Islamic approach to be considered independent or neutral, since he necessarily had close links with the party that appointed him or was involved in choosing him and could always dismiss him without having to give reasons.

(d)As the arbitrator/conciliator had to be chosen by the parties from among individuals theyknew and trusted, the jurists of the seventh and eighth centuries were naturally inclined to require that the person or persons chosen should belong to the Islamic faith, as a non-Muslim could not exercise authority (Walaya) over a Muslim.

3. Clearly, it was impossible to maintain the above features in the changing world resulting from the constitutional and legal reforms undertaken within the Ottoman Empire during the second half of the nineteenth century pursued more intensively after the abolishment of the Caliphate in 1923, well as from the birth of numerous nation-States throughout the region, which adopted modern codifications of Western inspiration.

During the last two decades, important modifications have been introduced adapt the new domestic systems to the requirements of the globalized inter national business community. Attention has been given to the legal effects recognizing the binding force of arbitration clauses inserted in contractual documents to cover future disputes that may arise thereunder, and to ensuring that arbitrators enjoy a certain degree of independence in their quasi-judicial function without being at the complete mercy of the parties as before.

These reforms were greatly facilitated by the adherence of most countries the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the making of several collective agreements between member States of the Arab League, the creation of regional and domestic arbitration centres applying the UNCITRAL Arbitration Rules, and more recently introduction of domestic legislation inspired by the UNCITRAL Model Law on International Commercial Arbitration. 2[Page248:]

4. The modernization of the juridical framework has certainly been an important positive step towards liberating domestic arbitral proceedings from the old dogmas elaborated twelve centuries ago, which are illsuited to the modern requirements of the international business community in a globalized world where institutionally administered arbitration has become a universally recognized reality calling for an equally universal arbitration culture.

In order to achieve a truly universal culture, it is necessary to transcend the particularities of any given culture and, going beyond regional and domestic experience, seek common values and juridical and ethical canons that command universal acceptance. In my view, it is not sufficient to insert in the various laws and regulations similar rules of high technical sophistication and modernity. More important is the spirit in which the rules and regulations are implemented under the auspices of the arbitral institutions responsible for the conduct of arbitration proceedings. Therefore, it is of prime importance to establish with precision what are the essential characteristics of the prevailing universal arbitration culture according to which each regional or domestic operating system could be evaluated and rated as being more or less in conformity with the requirements of that culture.

Applying to international arbitration what an eminent scholar and former judge of the International Court of Justice has recently written in relation to international law in general, it is vital to stress the importance of 'widening the intercultural base' on which the structure of arbitration practice stands, and particularly 'the need to search globally for the traditions embodying the wisdom of the whole of humanity rather than to confine this search within the limits of any one cultural tradition however rich'. 3

It is not possible within the confines of this paper to elaborate on the various components of the universal arbitration culture as it exists at the beginning of the twentyfirst century or to demonstrate the positive contribution ArabIslamic culture has made in this respect. The following paragraphs express some reflections on three precise points:

(a)the emergence in the last two decades of a truly universal arbitration culture as chiefly reflected in the institutional framework of ICC arbitration;

(b)the main characteristics of that culture having a positive impact on the development and progress of the arbitral process; and

(c)the obstacles arising from persistent negative features at regional and domestic levels to be overcome when furthering the positive achievementsat a universal level. [Page249:]

6. Commenting on the period that followed the end of the First World War and the emerging era of international organizations, whether intergovernmental or nongovernmental, Lord Mustill rightly observed in a recent study that 'almost the first act of the newly inaugurated International Chamber of Commerce was to set up its Court of Arbitration, which for years had a centralizing effect on International Arbitration thought and practice in the world of International Arbitration'. 4

The system that started to develop during the following three decades can hardly be described cosmopolitan, since the principal players in international business belonged almost exclusively to the Western imperial powers that dominated the huge natural resources located in colonies and dependencies in Asia, Africa and Latin America.

Accordingly, those involved as administrators, representatives of national committees, active members of the ICC Court of Arbitration and arbitrators were largely learned individuals of European origin, often academics and retired judges, comprising a select and rather closed group. Two eminent American social psychologists have remarked that outsiders often used the terms 'mafia' and 'club' to refer to the group. 5

7. However accurate that description of the situation prevailing in the nineteen fifties and sixties may be, there can be no doubt that the image of ICC arbitration has changed radically since the nineteen seventies. With each passing decade ICC arbitration has become more universal in character.The former system focused on Europe has opened to provide thirdworld newcomers with adequate representation both in the enlarged ICC Court and through the increasing number of national committees and their growing activity.

This development towards universalism can be appreciated by comparing two major ICC publications. The first-Liber Amicorum, Hommage à Frédéric Eisemann (ICC Publication No. 321)-dates from 1978. The contributors to this work all belonged to the old 'club' without any newcomer representing the[Page250:]

AsianAfrican or Latin American legal cultures. The second-Sixty Years On: A Look at the Future (ICC Publication No. 412)-dates from 1984 and was the outcome of a conference marking the sixtieth anniversary of the ICC Court of Arbitration. The contributors to this book included nine from Africa and Asia and three from Latin America. The former included six from the Arab world. The presence of Sheikh Ahmed Zaki Yamani, the famous Saudi Arabian Minister of Petroleum, as the main speaker at the conference, was a sign of the post1973 shift of power caused by the first energy crisis.

Between 1978 and 1984, the ICC arbitration system had undergone a radical transformation, in large part due to the constructive criticism of the previous closed 'club' voiced by thirdworld practitioners. A new era was inaugurated marked by the intent to realize the truly universal aspirations of ICC arbitration.

The new era saw the creation of an increasing number of thirdworld national committees with members actively participating in the ICC Commission on Arbitration, an increasing number of arbitrators from regions other than Europe, and the appointment to the ICC Court of Arbitration of members, including ViceChairmen, from such regions. As an illustration, it may be noted that an eminent jurist from Lebanon, Dr Samir Saleh, was appointed ViceChairman of the ICC Court in 1982. He was succeeded in 1987 by Counselor Mohamed Mustafa Hassan, a former VicePresident of the Egyptian Council of State, who remained in office for almost a decade. During the last five years, as the incumbent of that office, which entails true sacrifices and no lucrative benefits, the author of this paper has witnessed the progressive development of ICC arbitration as an institution, which, thanks to an appropriate management structure, deals in complete transparency with well over a thousand pending arbitration cases each year. In so doing, it embodies a truly transnational culture reflecting universally accepted positive values and norms of behaviour that could serve as a model for overcoming the obstacles of outdated traditions encountered in the modernization of the regional and domestic arbitration environments.

8. What are the main features of the transnational culture that distinguishes ICC arbitration and could serve as guidance for regional and domestic arbitral institutions, whether to promote positive values and norms of behavior or eliminate negative tendencies affecting the integrity of the arbitral process?

In responding to that important question, special emphasis must be laid on three salient characteristics of the ICC arbitration system: [Page251:]

a) Institutionalization of the decisionmaking process

Cases are handled by teams of lawyers, each of which follows the procedure from receipt of the request for arbitration through to notification of the final award to the parties and the settlement of the arbitration costs. These teams are multicultural and multilingual and have the capacity to communicate in some twenty different languages. The work of the teams is overseen by a highly qualified and experienced Secretary General, aided by a Deputy and a General Counsel.

The highcaliber work of the Secretariat is the basis for the subsequent decisionmaking either at the Court's weekly committee sessions or at its monthly plenary sessions. At these sessions the members of the Court, who now number well over a hundred, from some ninety different countries, share in a unique experience of transparent management covering hundreds of arbitration cases each year.

b) Cultural diversity

Within that highly developed institutional structure there is presently no room to restrict the choice of arbitrators to a given nationality or to members of a privileged 'club' as before, since the ICC Court's role in this respect is limited as a general rule to the choice of an appropriate national committee, which is requested to propose a sole arbitrator, coarbitrator or a presiding third arbitrator, as the case may be, who has the qualities required and is sufficiently familiar with the rules of law likely to govern the substance of the case. The arbitrators that presently act in ICC cases are spread over some sixty different nationalities, with an increasing number from AfroAsian and Latin American countries. European predominance within a closed circle has become a thing of the past. A new generation of arbitrators is emerging of diverse cultural origins who have received legal training of a transnational character often outside their home countries.

c) Key aspects of the procedure

Insistence is laid on certain fundamental rules which the parties necessarily undertake to observe when submitting to ICC arbitration. They include above all the following:

(i) Terms of Reference

The need for the parties and the arbitral tribunal to work out Terms of Reference, which are then submitted to the Court for approval or information, as the case may be, enables the matters falling within the arbitral tribunal's jurisdiction to[Page252:] be appropriately delimited and gives the parties an opportunity to reconsider their respective positions with a view to a possible amicable settlement, so as to avoid the escalation of the dispute whether in terms of litigious tactics or exaggerated claims and counterclaims.

(ii) Duration

The arbitration must take place within reasonable time limits, which the ICC Court has the power to determine according to the particular needs of each case, since the parties necessarily entrust it with that power when agreeing to submit to the ICC Rules of Arbitration. That power avoids the risk of openended arbitral proceedings left to the discretion of arbitrators who may be tempted to prolong their role in order to justify more fees.

(iii) Scrutiny

On the basis of reports prepared by the Secretariat, the Court scrutinizes draft awards to ensure that they meet the necessary formal requirements, are rendered in compliance with the Terms of Reference, and contain no ambiguities, contradictions or issues left unanswered or requiring clarification in order to be understood by an average intelligent reader. Scrutiny of the merits helps to ensure consistency in the reasoning, as the Court may, if necessary, formulate observations with a view to allowing the arbitrators to enhance the quality of the award and reduce difficulties at the stage of enforcement by State courts.

(iv) Costs

The financial aspects of the arbitration proceedings are regulated by preestablished rules known to all interested persons, whose application is finally determined by the ICC Court itself in the light of the comprehensive data provided by the Secretariat, including the complexity of the case, the number of hours devoted to the study of the file, the length of the hearings and the preparation of the award(s). Thus, the level of costs and remuneration is decided collectively with maximum transparency by applying general rules setting out criteria to the circumstances of each case.

9. These fundamental features of the ICC arbitration system reflect the main components of a universal arbitration culture as it should be understood and followed by the many regional and domestic arbitral institutions that have been and are being set up throughout the world. The culture reflected in the ICC model is also relevant as a means of avoiding or limiting the negative aspects decried by many eminent observers. [Page253:]

The first danger to be avoided is that of entrusting the settlement of disputes to arbitral institutions lacking an effective structure capable of ensuring collective management by experienced and independent individuals not personally involved as potential arbitrators in the cases they administer and a fair process for selecting competent arbitrators generally known to act fairly, impartially and efficiently. Furthermore, the managers of regional and domestic arbitral institution should have no personal links with the arbitrators they select, so as not to give the impression that they are favouring the members of a closed circle of friends exchanging material benefits among themselves.

As emphatically stated recently by an eminent arbitrator of worldwide renown with regard to both the arbitral tribunals and the institutions administering arbitrations, '[t]here is no room for arbitral dictators'. 6

10. Through the implementation of all of the abovementioned features, the ICC model can effectively assist in overcoming the other serious danger of transforming arbitration into a 'market' dominated by 'merchants' seeking to gain as much money as possible out of their new 'profession' as arbitrators. In his masterly book Théorie de l'arbitrage, the late Professor Bruno Oppetit was among the first academic writers to draw attention to the fact that: 'Il existe à présent un véritable marché de l'arbitrage dans tous les sens du terme.' 7

He transposed to an academic level what social psychologists Yves Dezalay and Bryant G. Garth had observed empirically two years before in their book Dealing in Virtue referred to above. They indicated that, due mainly to the influence of US legal practice, the interests of transnational business leads the person 'who goes into this business to make a living'; i.e. 'a career' out of his role as arbitrator and not a 'duty' as it should be. 8 In other words, an arbitration culture in which 'persons with strong moral beliefs' accomplish a noble mission in the interest of the arbitration community at large is gradually giving way to a new generation of 'merchants of law'.

One of the most respected and experienced personalities in the field of international arbitration, Professor Pierre Lalive, recently issued a warning against that destructive phenomenon in an article entitled 'Sur une "commercialization" [Page254:]

de l'arbitrage international'. 9 He is joined in this respect by Lord Mustill, another deep thinker and observer, who notes the appearance on the scene of international arbitration of persons 'attracted to arbitration as a profession or as a source of regular income'. He observes that 'we now find a body of people who aim to sit as arbitrators on a regular basis, with the resulting fees as an important, if not necessarily the main, source of their annual incomes', adding that the 'professionalization of the role of arbitrator' could transform that previously noble task of resolving disputes as a public service into 'really big business'. 10

11.The universal arbitration culture that ICC is developing and trying to promote leads, in my opinion, based on experience gained from within the system as a ViceChairman of the ICC Court, to the conclusion that the incarnation of that universal culture of transparency and collective awareness constitutes a model which, by offering solid safeguards against the dangers stated above, will help to ensure efficiency of the structured administration of disputes worldwide.

By accepting to serve as Chairman of the ICC Court for almost a decade, and thereby depriving himself of the possibility of being appointed as an ICC arbitrator, Robert Briner has provided a living example of dedication to the public interest, demonstrating that established, wellknown personalities with long experience in arbitration are capable of resisting the temptation to becoming 'professionals' or 'merchants' of international arbitration keen to make big money. He most probably sacrificed considerable sums of money in arbitrator's income, but gained in credibility for himself and for the institution he has served, which is far more valuable in absolute objective terms.

12.The issue before us is to what extent the newly emerging arbitration centres that have been and are being set up to administer arbitrations within a given region should or could be inspired by the universal arbitration culture embodied in the ICC system?

The question is worthy of investigation, not least for the reasons stated by Professor Böckstiegel: 11

though we will see continuously new institutions trying to enter the

arbitration 'market', parties and their lawyers will continue to use their

due diligence to the effect that the traditional major international and[Page255:]

national institutions of arbitration will most often be chosen, because one

does not want to run the risk of using procedures which have not yet been

sufficiently exposed to the challenges of practice.

In other words, in order to attract users, it is not sufficient for regional and domestic arbitration centres simply to declare that they have adopted the UNCITRAL Arbitration Rules for the administration of arbitrations, or to promote themselves through repeated conferences and seminars where nothing new is learned.

What is really needed is a solid structure composed of a highly qualified and competent group of persons carrying out decisions that are made collectively and not by a single person, however skilled; a set of preestablished rules and guidelines reflecting a general policy periodically reviewed and adapted to the needs of the institution; and highly trained young lawyers capable of assuming tasks similar to those of the ICC Secretariat, rather than poorly equipped typists.

13.An interesting step in this direction has recently been made in Dubai, where the first measure adopted after the promulgation of the Statute of Dubai International Arbitration Center in August 200412 was the constitution of the Board of Trustees provided for in Chapter II of the Statute by virtue of an Emir decree. The twentyone members of the Board include ten arbitrators of worldwide renown from ten different countries including the United Kingdom, the United States, Singapore, Belgium, the Netherlands, Ireland and Switzerland. As for the other eleven members, they include renowned Arab arbitrators from countries ranging from Tunisia to Saudi Arabia, including Syria, Jordan and Egypt among other Gulf States.

Hopefully, this new pattern of transcultural cooperation will mark a departure from the previous parochial attitude of concentrating all decisionmaking powers in the hands of one person who acts freely without being bound by any preestablished general rules or guidelines.

14.The other ingredients of the universal arbitration culture are of equal importance, particularly in eliminating the negative aspects surviving from the old traditions according to which arbitrators were regarded as agents who could be revoked at any time and were chosen among friends selected for the personal trust the parties placed in them and who were expected to remain in close contact with the parties throughout the arbitration proceedings. [Page256:]

The harmful consequences of these ancient influences on modern international arbitration cannot be overstressed. A sole manager who substitutes for the parties in selecting arbitrators of his choice, inevitably from among those agreeable according to his personal taste, increases the danger of the 'commercialization' of arbitration signalled by Oppetit, Lalive and Lord Mustill, particularly in countries where an arbitrator may gain as fees in a single arbitration case what a supreme court judge earns during ten years of hard judicial work.

The only way to eliminate those negative aspects is to strictly adhere to the universal arbitration culture and its underlying ethical values. Requiring that the arbitral process be conducted from beginning to end in complete transparency, and adopting an adequate system of scrutiny at the various stages of the proceedings, from the drafting of terms of reference to the rendering of awards and fixing of costs, by qualified collective bodies assisted by competent counsel bound by a commitment to confidentiality, constitute, in my opinion, an indispensable prerequisite that will allow regional and domestic arbitration centres to gain the credibility needed to occupy a respectable place in today's international business community, where globalization and competitiveness make adherence to universal standards of behaviour an absolute necessity. [Page257:]

1
Islamic Law' in Planning Efficient Arbitration Proceedings - The Law Applicable in International Arbitration, ICCA Congress Series No. 7 (1994) 494; 'Is there a Growing International Arbitration Culture in the Arab-Islamic Judicial Culture' in International Dispute Resolution, Towards an International Arbitration Culture, ICCA Congress Series No. 8 (1966) 47; 'The Interrelation Between Worldwide Arbitral Culture and the Islamic Tradition' in Proceedings of the Centennial Anniversary of the Permanent Court of Arbitration, The Hague (1999) 117. For a broader overview of the impact of traditional Islamic international law on the legal mentality in Arab-Islamic countries, see A.S. El-Kosheri, 'History of the Law of Nations - Regional Developments: Islam' in R. Bernhardt, ed., Encyclopedia of Public International Law, vol. II (1999) 809.

2
For a comprehensive description of the achievements of various Arab countries in this respect, A.-H. El-Ahdab, Arbitration with the Arab Countries, 2d ed. (Kluwer Law Internatinal, 1999); N. Najjar, L'arbitrage dans les pays arabes faces aux exigences du commerce international (Paris, 2004).

3
C.G. Weeramantry, Universalising International Law (2004) at 3.

4
Lord Mustill, 'The History of International Commercial Arbitration - A Sketch' in L.W. Newman & R.D. Hill, ed., The Leading Arbitrators' Guide to International Arbitration (Juris, 2004) 1 at 9.

5
Y. Delazay & B.G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996) at 10 and 50, where the authors attribute to a socalled 'leading arbitrator of the new generation' the remark that '[i]t is a mafia because people appoint one another . . . You appoint your friends' from among almost 'forty to fifty people' in Western Europe.

6
V.V.Veeder, 'Whose Arbitration is it Anyway: the Parties or the Arbitration Tribunal - An Interesting Question?' in L.W. Newman & R.D. Hill, ed., The Leading Arbitrators Guide to International Arbitration (2004) 347.

7
Presses Universitaires de France, 1998 at 127.

8
Supra note 5 at 34.

9
In Liber Amicorum Claude Reymond, Autour de l'Arbitrage (Litec, Paris, 2004) 167.

10
Supra note 4 at 26 and 28.

11
K.H. Böckstiegel, 'Perspectives of Future Development in International Arbitration' in L.W. Newman & R.D. Hill, ed., The Leading Arbitrators Guide to International Arbitration (2004) 495 at 502.

12
(2004) 1:3 DIAC Journal 6.