Dubai, 7-8 May 2018

Expertise: A woman’s no man’s land?

Chair of the panel: Roula Harfourche (Partner, Accuracy, London)

Members of the panel: Sara Koleilat-Aranjo (Senior Associate, Al Tamimi & Company, Dubai), Iryna Akulenka (consultant, HKA, Dubai), Mohamed ElGhatit (Founding and co-managing Partner of OGH Legal).

The discussions opened with key statistics:

  • Who’s Who Legal – Experts in Commercial Arbitration: Over the past 7 years, the number of female experts on this list went from zero in 2011 (out of 59 experts) to 18 (out of 218) in 2018, i.e. 8%.
  • ArbitralWomen search tool: 45 experts listed as of 5 April 2018 (compared to 37 as of November 2017).
  • Of the senior people listed as damages or construction experts on four firms’ websites: 8% to 21% are female.
  • Although the trend is one of clear progress, when we compare these statistics to the percentage of women at entry levels in these firms, which is approximately 50% in accountancy firms and up to 30% in project consulting firms, it is clear that women are under-represented.

The panel agreed that there was no difference in approach or performance under cross-examination between female and male experts in terms of substance, but that there was a difference in terms of form and general demeanour, with the presence of women diffusing tension. Unfortunately, women are still perceived as less knowledgeable, not strong enough, or conversely, coming across as too aggressive or ‘manly’. Women therefore have the added challenge of striking the right balance.

The panel was then asked why, if lawyers have good experiences when they do appoint female experts, women are still under-represented at the testifying expert level.

They agreed that there were various issues at play, starting with a shortage of women studying relevant subjects at school/university, perception bias, hostility of the male-dominated workplace, a sense of isolation, lack of sponsors, the work-life balance struggle, and ‘firefighting’ behaviour that is rewarded, hence the lack of promotion and the need to constantly prove oneself. There are very few women at entry levels and even fewer stay long enough to become experts.

The panel finally agreed that the problem was systemic; solving it would take time and require a change of mind-set at two levels:

  1. The idea of appointing a woman as expert should not be seen as ‘unusual’ among clients and fact-finders. Embedding this into people’s habits takes time and requires support programmes. Lawyers have a role to play by ‘educating’ their clients.
  2. Women experts need to be confident that they are as a good as their fellow male experts. This is no easy task, as there are several barriers to overcome. Women seeing more fellow women experts and promoting each other will help. Acting as consultant or as support for the main expert is one way to increase the visibility of female practitioners. In certain industries (construction, highly specialised and technical fields), industry experience is essential.

The panel was divided on whether gender-specific policies such as positive discrimination, anonymised CVs, setting recruitment and retention targets at board level, and quotas were a good idea, although they agreed that in the countries where change is imposed from the top, progress is much clearer.

The panel agreed that certain policies, such as re-entry programmes for women who have taken career breaks and flexible work were helpful.

The panel closed the discussions expressing optimism that the upward gender-diversity trend will continue and result in positive effects in the disputes industry.

Can you keep a secret? The many faces of confidentiality in arbitration

Chair of the panel: Karl Hennessee (Senior Vice-President, Office of General Counsel, Airbus Group, France; Chair of ICC DRS Governing Body)

Members of the panel: Nadine Debbas Achkar (FCIArb, Lebanon), Shahram Shams (Partner, Sheed Associates, Iran), Peter Rosher (Partner, Reed Smith, France).

The issue of confidentiality in arbitration is usually oversimplified and focuses on contractual clauses and perhaps arbitrator orders. Further studies and discussions show that the topic is underserved in the literature, both in range and in depth.

Party expectations of confidentiality in arbitration. This panel showcased that parties tend to believe that confidentiality is an inherent characteristic of international arbitration. Nadine Debbas Achkar assessed the validity of this assumption. As a practical matter, the ambit of confidentiality obligations, the persons to whom the restrictions apply and the timing of when any such restrictions apply, vary significantly depending on the governing law, the applicable institutional rules and the confidentiality provisions in the underlying agreements.

The idea that confidentiality is an absolute, however, has been significantly eroded in recent years. As a result, a party wishing to ensure the confidentiality of its arbitration proceedings should consider (i) pre-dispute, including carefully-drafted confidentiality undertakings in the arbitration clause as well as selecting an arbitration seat and institutional rules that are protective of confidentiality and (ii) post-dispute, endeavoring to agree confidentiality obligations, or alternatively, seeking a confidentiality order from the Tribunal. Regardless of the approach adopted by the parties, it may however be inevitable that the award will become part of the public record before the court at the enforcement stage, thereby significantly undermining the confidentiality of arbitration proceedings.

Regulatory regimes relating to trade sanctions and confidentiality. A few years ago, Shahram Shams noted that we were not concerned with regulatory regimes in the arbitration proceedings. The laws that arbitration players were concerned with were the laws governing the contract, the arbitration agreement and the lex arbitri. But arbitration players are now very much concerned with the regulatory regime that applies to arbitration proceedings. Mandatory regulatory regimes is do not emanate from one jurisdiction, but from several jurisdictions. The question that arises is: which regulatory framework applies to arbitration proceedings (e.g. the lex arbitri, parties’ national laws, arbitral institutions’ rules, or generally EU and US laws)?

For now, no explicit regulation requires disclosure of information when requested by a regulatory authority. Arbitration institutions in Europe have however all notified, that if the US or EU regulatory authorities require disclosure of information on the case, such information will be shared with the said authorities. Countries under sanctions and embargoes, for instance, have the legitimate expectations to the protection of confidentiality of the arbitration proceedings against foreign regulatory authorities.

There is no definite means by which confidentiality could be protected against regulatory authorities. But confidentiality agreements and injunctive orders that a tribunal may be willing to issue could limit the power of the regulatory authorities. Arbitration is supposed to be neutral, independent and apolitical. Parties therefore have a legitimate expectation of confidentiality of the arbitration proceedings and players in international arbitration should do their best to protect confidentiality against regulatory authorities that may interfere in the arbitration.

Corporate reporting and related exceptions to confidentiality. Parties, especially publicly traded corporations and state or parastatal parties, may have absolute legal obligations that limit or entirely vitiate confidentiality order/agreements. These may include, among others i) mandatory legal disclosures under third party contracts, ii) third party disclosure and discovery obligations in unrelated legal disputes, iii) shareholder rights and investor relations’ requirements and interests, iv) statutory auditors’ regulatory requirements, v) industry/sectoral regulations, vi) provisioning disclosures under accounting rules, vii) third-party funding contractual commitments, insurance policies, lender covenants, etc.

Karl Hennessee explained that there is quite a bit of discretion in the way an exogenous exception to an apparent endogenous confidentiality requirement is to be interpreted. Neither an opposite party, nor a tribunal is likely to master the requirements regarding It is hard to imagine a tribunal sanctioning a party that asserts the need to disclose details of an arbitration to support an accounting provision or to meet requirements of an industry regulator. The difficulty will nearly always be in calibrating the timing and extent of disclosure. Beyond the legitimate respect for what may seem to be conflicting obligations – all of which are enforceable by third parties – some may cynically use these requirements tactically to undermine confidentiality agreements or even orders rendered by a tribunal.

Drafting and negotiating pragmatic confidentiality agreements. In light of these elements, Peter Rosher noted that providing a pragmatic analysis of what should be included in a confidentiality agreement to protect confidential information in arbitration is a challenging one. In a minefield of a topic where one size most certainly does not fit all, the only practical solution is a tailor made one, or allowing the tribunal to take the reins and focus on pre-emptive protective orders on confidentiality.

Even though it is often difficult to predict at the time of contracting what exactly is in a party’s interests in terms of confidentiality, a non-exhaustive selection of issues to bear in mind would be the following:

  • be aware of the scope of confidentiality, notably in relation to third parties,
  • provide a clear definition of what is to be covered by the agreement,
  • give sufficient forethought to exceptions,
  • provide for logistics, including limits for the return/destruction of documents, and
  • ensure your agreement has teeth by providing for sanctions.

Hercules' pillars: Navigating past the civil and common law divide

Chair of the panel: Dr Dorothee Ruckteschler (Partner and Head of CMS International Arbitration Group, CMS Hasche Sigle, Germany)

Members of the panel: Julian Cohen (Barrister and Arbitrator, Gilt Chambers, Hong Kong), Celine Abi Habib Kanakri (Counsel, Dispute Resolution, Baker & McKenzie Habib Al Mulla, Dubai), Erin Miller Rankin (Partner, Freshfields Bruckhaus Deringer LLP, Dubai /Singapore), Professor Dr Mohamed S. Abdel Wahab (Founding Partner & Head of the International Arbitration, Zulficar & Partners Law Firm; Chair of Private International Law, Cairo University; Vice-President of the ICC Court).

The discussion among the panelists and the ensuing debate with the delegates revealed that there are certainly many differences between the two legal systems, some of them still being very substantial. The panelists focused on two issues of substantive law and two issues of procedural law. Interestingly, there seems to have been more harmonization regarding procedural issues than regarding substantive law matters.

On the substantive issues:

  • Contract interpretation and good faith: The panelists did not stop at discussing the well-known different approaches in ascertaining the scope of a contract (i.e. limited to the express terms vs. implied terms based on the parties' intent), but went on to discuss the very interesting submission that there may be a relationship between the parties' pre-contractual and post-contractual conduct on the one hand and (post-contract) interpretation and good faith on the other hand.
  • Claims and Damages: This substantive issue proved to be more complicated, not so much because of differences between the two legal systems, but rather because the underlying legal issues are very complicated in themselves. This is certainly true with regard to the question of how clear the causal link needs to be between the cause and the damages. The same applies to the understanding of clauses regarding liquidated damages.

On the procedural issues ‘Burden and Standard of Proof’ and ‘Iura Novit Arbiter (?)’, the presentations showed that both issues have different starting points in the two different legal systems. International arbitration specialists are very aware of these different approaches and therefore very carefully handle these issues. The panelists enquired whether the term ‘Burden of Proof’ means the same when used in a civil or a common law context. They underlined that this is often assumed but, equally often, this assumption is wrong. It also became clear that the statement ‘Iura Novit Arbiter’ is not only a matter of substantive law, but also touches on the differences in procedural legal systems.

Joint ventures: Opening Pandora’s box (or keeping it closed)

Chair of the panel: Dr. Mireille Taok (lawyer and arbitrator, France)

Members of the panel: Lara Hammoud (Senior Legal Counsel, Abu Dhabi National Oil Company) Amani Khalifa (Principal, Khalifa Associates, Egypt) Marwan Sakr (Partner, SAAS, Lebanon) Amal Bouchenaki (Partner, Herbert Smith Freehills, New York).

The panel examined the different types of disputes and related procedural and substantial issues that most commonly arise in the context of a joint-venture arbitration.

Lara Hammoud first addressed problems that are inherent to multi-party and multi-contract arbitrations and tend to arise at the beginning of the arbitration proceeding (e.g. in relation to the constitution of the arbitral tribunal, joinder of additional parties, and consolidation of arbitrations). Ms Hammoud emphasised the importance of coordinating the drafting of dispute resolution clauses in related contracts to avoid incompatibility. She also recommended the choice of a seat of arbitration which laws and courts are supportive of multi-party and multi-contract arbitration disputes and pertaining mechanisms.

Amani Khalifa discussed the issues that arise in relation to the question of legal capacity and standing to sue and to be sued in the context of unincorporated joint ventures, in particular under the laws of the UAE.

Marwan Sakr examined the question of the law(s) governing joint venture disputes with a particular focus on the MENA region. Despite the wide recognition of the principle of party autonomy in determining the law applicable to international contracts, the parties’ choice of law in Arab legal systems remains subject to numerous limitations such as (i) the public policy exception which often includes the principles of Sharia and moral standards of good behavior, and (ii) the application of imperative rules including mandatory laws applicable to specific contractual arrangements (e.g. commercial agency and exclusive distribution agreements).

Mr Sakr discussed the laws applicable to unincorporated joint ventures that are treated as non-registered partnerships or Sharikat al Mahassa. He recommended that public policy and mandatory rules of the seat and of potential enforcement jurisdictions be carefully considered by parties and arbitrators to ensure the efficiency of the choice of law clause as well as the enforceability of arbitration awards. He also advised that joint ventures operating in the MENA region consider the use of an off-shore corporate structure governed by the same law that governs the shareholders’ agreement to avoid potential conflicts.

Amal Bouchenaki noted that joint venture disputes form a significant portion of the caseload of several major arbitral institutions. She addressed the specificities of transfer and exit provisions in joint venture agreements and the role of experts and emergency arbitrators in the valuation process.

Drafting prayers for relief: A guide to success

Chair of the panel: Christopher Boog (Partner, Schellenberg Wittmer, Singapore and Zurich)

Members of the panel: Gordon Blanke (Partner, DWF, Dubai), Eda Cerrahoğlu Balssen (Partner, Cerrahoğlu Law Firm, Istanbul), represented by Professor Fadlullah Cerrahoğlu (Partner, Cerrahoğlu Law Firm, Istanbul), Christopher Mainwaring-Taylor (Partner, Allen & Overy, Paris), Thanos Karvelis (Partner, Galadari Advocates and Legal Consultants, Dubai).

Gordon Blanke presented technical and practical considerations when drafting requests for monetary relief. When requesting the relief, parties should make sure that the relief sought is compatible with mandatory legal provisions both at the seat and the prospective place of enforcement, and that challengeable relief is separated out from other relief in order to allow for partial nullification/enforcement if need be. Mr Blanke also provided a practical example of how a request for monetary relief could be drafted.

Professor Fadlullah Cerrahoğlu tackled non-monetary relief, focusing on declaratory relief and specific performance. The presentation raised a number of pertinent questions and issues to bear in mind when drafting such requests, including whether such remedies are available, whether there are limitations on such remedies under the applicable law, if the requested relief is sufficiently specific, and enforcement-related considerations if the jurisdiction where enforcement is sought is less amenable to the type of relief awarded.

Christopher Mainwaring-Taylor gave his insights on amending prayers for relief. Given the frequent need to amend prayers for relief as the arbitration proceeds, he advised to frame requests for relief broadly early in the proceedings, up to and including the Terms of Reference. This should give parties greater scope to amend their prayers for relief if necessary and should minimise the risk of amended prayers for relief being qualified as new claims and possibly not being allowed under Article 23(4) of the ICC Rules. Furthermore, he recommended including the ‘sweeper’ language often found in parties' prayers for relief (along the lines of ‘and such other or further relief as the tribunal may deem just and appropriate’).

Finally, Thanos Karvelis gave a detailed overview of the system of interim relief in international arbitration, including issues parties may face when seeking to enforce such measures ordered by arbitral tribunals in national courts. He also provided valuable insight into instances when parties may be better advised to address their requests for interim relief to state courts rather than to the arbitral tribunal or an emergency arbitrator.

Proving your claim in international arbitration

Chair of the panel: Samaa Haridi (Partner, Hogan Lovells, New York)

Members of the panel: Raid Abu-Manneh (Partner, Mayer Brown, London); Affef Ben Mansour (Of Counsel, Savoie Arbitration, Paris); Daniel Garton (Partner, White & Case LLP, London); Gordon Moffat (GMCS, Dubai).

Raid Abu-Manneh started with a presentation on proving one’s claim in international arbitration. He focused on the important distinction between burden and standard of proof, with an emphasis on the relevant provisions of the UAE law. He raised the following key points, among others:

  • proceedings before arbitral tribunals are not subject to ‘international rules of evidence’, and that ‘rules’ of evidence followed by arbitral tribunals tend to be more liberal than those followed by domestic courts;
  • broad powers are afforded to tribunals in various arbitration laws, especially in laws from nations of the Middle East.

He also emphasized that it is important to consider evidence issues when determining where to seat an arbitration because common law systems tend to see matters of burden and standard of proof as procedural, while civil law systems treat them as substantive.

Daniel Garton followed with a presentation on proving construction claims in international arbitration. He outlined recent developments in quantifying claims in construction arbitration, in particular:

  • system dynamics: ‘system of coupled, nonlinear, first-order differential (or integral) equations. Simulation of such systems is easily accomplished by partitioning simulated time into discrete intervals of length dt and stepping the system through time one dt at a time’; 1 and
  • statistical (probability) sampling, which is described as a means of answering questions about a large population by asking questions to a smaller part of that population.

He explained that as data sets continue to grow and projects become more complex, computer modelling and statistical sampling are likely to become increasingly common. He reminded the audience that assumptions should always be auditable and supported by evidence. He suggested that parties should consider agreeing process/methodology with the other party early on. Above all, he encouraged parties to focus on the first principles of proving a claim (liability, causation and quantum).

Gordon Moffat spoke about the quality of evidence presented by experts in international arbitration and focused on the following:

  • the proper role of expert evidence in arbitration proceedings;
  • how the expert’s opinion is itself based on various forms of factual evidence and how this evidence is introduced into proceedings; and
  • the process of gathering the factual evidence on which the expert will base his/her opinion.
  • He emphasized the importance of making sure the expert understands the proper role of expert evidence and the expert’s duty of independence, while also focusing on trying to understand the important facts and seek to agree on methodologies with the other side’s expert.

Finally, Affef Ben Mansour spoke on the topic of proving moral damages claims in international arbitration. She described the possible components of moral damages (physical health, physical integrity threats, mental suffering, reputational harm, loss of business opportunities, and possibly abuse of process). She explained that moral damages are recognized under most legal systems –including France, Egypt, Iraq, Kuwait, Lebanon, the UAE and Yemen – and highlighted the distinctions between natural and legal person’s right to moral damages, and their overall exceptional nature in international arbitration.