24 February 2021, online

Welcome addresses

On behalf of ICC UAE, Hassan Arab (Partner, Al Tamimi & Co. Dubai; President of the ICC UAE Arbitration Commission) opened the virtual 9th ICC MENA Annual Conference.

Alexis Mourre (former President of the ICC International Court of Arbitration, Paris) and Linda Fitz-Alan (Registrar and Chief Executive of ADGM Arbitration Centre) welcomed the opening of the Abu Dhabi Global Markets (ADGM) Arbitration Centre in Abu Dhabi.1 This new ICC case management office is an indicator of the growing importance of the Gulf region in the world economy and of the corresponding development of arbitration in the region which was made possible also thanks to the enactment of the Model Law based UAE Federal Arbitration Law no. 6/2018. The ADGM is an international financial centre that applies English common law in its courts. Mr Mourre stated that the ADGM Court and the Abu Dhabi judicial Department have recently signed a MOU which ensures the mutual enforcement of arbitral awards in the ADGM Court without any review of the merits. Ms Fitz-Alan stated that the opening of the case management office coincided with the fiftieth anniversary of UAE’s federal unification. She highlighted that the UAE is being among the top ten countries with regards to the most frequent nationalities among parties in ICC administered arbitrations.2 Encouraging inclusion and diversity is among the main elements that the ADGM has been promoting.

Roundtable with ADGM & ICC Court Representatives

A roundtable discussion took place between representatives from the ADGM, Adam Peters (Senior Legal Counsel, ADGM Courts, UAE) and representatives from the ICC International Court of Arbitration, Alexander G. Fessas (Secretary General of the ICC Court; Director, ICC Dispute Resolution Services), Ziva Filipic (Managing Counsel, ICC Court), Sami Houerbi (former Director, Arbitration & ADR, MENA & Africa) and Dania Fahs (Deputy Director, Arbitration & ADR, MENA & Africa).3 The discussion focused mainly on the expansion of the ICC in the MENA region, from the establishment of an ICC representative office in ADGM to a case management office in Abu Dhabi.4

Judicial approaches to arbitration in the MENA: A bittersweet panorama?

The panel moderated by Mohamed Abdel Wahab (Founding Partner & Head of International Arbitration, Zulficar & Partners, Egypt) discussed the judicial approaches to arbitration in the MENA region showcasing the views of the speakers: Ali Al Hashimi (Managing Partner, Global Advocacy and Legal Counsel, UAE), the Dame Elizabeth Gloster (Arbitrator, United Kingdom; Former Court of Appeal Lady Justice), Bassam Mirza (Partner, PKM avocats, France & Liban) and Ahmed Ouerfelli (Founder Ouerfelli Attorneys & Counsels, Tunisia).

On the first topic of the arbitrability of commercial agency disputes in the MENA region and the judicial approaches thereto, Bassam Mirza particularly focused on the local agents’ indemnity claims for termination without cause or non-renewal of agency agreements. Mr Mirza mentioned that agents often enjoy a mandatory protective regime, meaning that courts are bound to apply mandatory national protective laws which may trump the parties’ agreement to apply a foreign law to the agency agreement. He also mentioned that in some Arab countries arbitration is prohibited in commercial agency contracts.

Mr Al Hashimi addressed arbitration related cases before the UAE courts and observed that the case-law has been rather inconsistent.5 However, UAE courts are positively developing and progressing towards a more predictable and arbitration friendly approach, which is also favoured by the new arbitration law and by the amendment of the procedural law which includes an expedite proceeding for the recognition of arbitral awards.

Mr Ouerfelli discussed about ‘public policy’ as ground for setting aside and denying enforcement to arbitral awards. He mentioned that the arbitration landscape improved substantially thanks to the enactment of arbitration friendly laws, the setting up of new arbitral institutions in the region, the publication of judgements and the organization of conferences which allowed the exchange of information. He mentioned that, differently from the past, nowadays courts render reasoned decisions explaining the grounds on which an arbitration award is annulled or denied recognition. This promotes consistency and helps in understanding the boundaries of the public policy exception.

Dame Elizabeth Gloster gave the closing remarks focusing on whether the stakeholders (i.e. arbitral institutions, the courts at the seat, arbitrators and counsel) are meeting the parties’ expectations in managing arbitration proceedings fairly and effectively in order to avoid setting aside or refusals to enforce arbitral awards. The first question to address, in her view, is whether the jurisdiction of the seat of arbitration is a ‘safe’ place. The key elements to assess whether a seat is "safe" are a good arbitration framework, a resolute judiciary, and the adherence of the state to international treaties for the recognition and enforcement of arbitral awards.

The increasing role of expert evidence in infrastructure disputes. A necessary evil?

The panel moderated by Alex Bevan (Partner and Global International Arbitration Practice Group Leader, Shearman & Sterling, UAE; member of the Steering Committee of the ICC UAE Commission on Arbitration & ADR) debated on the increasing role of expert evidence in infrastructure disputes showcasing the views of the speakers: Sabrina Ainouz (Partner, Squire Patton Boggs, Paris), Iryna Akulenka (Senior Consultant, HKA, UAE; Chair of the CIArb UAE branch), Roberta Downey (Partner & CO-Head of International Construction & Disputes, Vinson & Elkins, United Kingdom) and Andrew Mellor (Independent Expert Witness, UAE).

The discussion was structured as an Oxford-style debate with two members (one lawyer, Ms Ainouz; and one expert, Ms Akumenka) arguing in favour of the use of expert evidence in international construction disputes and two members (one lawyer, Ms Downey; and one expert, Mr Mellor) arguing against.

The panellists advocating in favour of expert evidence underlined the peculiar nature and complexity of disputes concerning construction and engineering projects.

  • Experts – either appointed by the parties or the arbitral tribunal – are fundamental to address that complexity. Counsel have learnt how to optimize the recourse to experts and to maximize the added value which they present to the case.
  • Selecting the right expert is of paramount importance, as well as providing the expert with clear instructions from the outset. Parties should understand that the primary aim of experts is to provide the scientific, technical, or economic expertise that the tribunal lacks, but needs, to decide the case.

The panellists advocating against the use of expert evidence observed:

  • Documents and fact witnesses are more reliable than experts. Fact witnesses corroborate what is recorded in contemporaneous documents as ‘they were also there, they smelt it, they saw it, they felt it’.
  • Experts, on the other hand, act as vehicles by which the parties try to recast the facts on their favour. Experts are very rarely independent as they tend to support the position of the party who engages (and pays) them.
  • The testimony of ‘in-house experts’ (e.g. engineers who worked on the project) is more useful than hiring an external expert. Often, the engagement of experts ends up expanding rather than narrowing down the disputed issues, with the consequence of driving the parties further apart.
  • Very few construction expert witnesses fully understand or respect the procedural aspects of arbitral processes.

A live poll was taken from the audience as to whether the increasing role of expert evidence in infrastructure disputes was a necessary evil. While the majority vote of the audience sided with the panellists advocating the necessity to engage experts in construction, the arguments of the panellists advocating against the use of expert evidence were rather persuasive as shown by the shift in the result to the poll before (‘agree’ 82%, ‘disagree’ 18%) and after (‘agree’ 65%, ‘disagree’ 35%) the debate.6

Valedictory session

The Conference closed with a valedictory session for Sami Houerbi, who acted as the ICC Regional Director for MENA & Africa for ICC Dispute Resolution Services for the last twenty-five years.7 Interviewed by Sana Belaid (Senior Counsel, CISCO UAE; Member of the ICC Court), Mr Houerbi reflected on his long career at ICC describing the main challenges and achievements, such as the opening of the 5th overseas ICC case management office in Abu Dhabi Global Market in December 2020. The full interview can be viewed online.

The 9th ICC MENA Conference on International Arbitration was kindly sponsored by Abu Dhabi Global Market (ADGM), Charles River Associates, Charles Russell Speechlys LLP, Diales, Global Advocacy and Legal Counsel, Hanscomb Intercontinental, J. Sagar Associates (JSA), J.S. Held, Linklaters, Wasel & Wasel, Ince, LexisNexis, Stephenson Harwood, Youssef & Partners, Zulficar & Partners. For sponsorship opportunities, please contact sponsorship@iccwbo.org.

The ICC Court Secretariat office in Abu Dhabi opened in April 2021, https://iccwbo.org/media-wall/news-speeches/icc-court-to-open-5th-overseas-case-management-office-in-abu-dhabi-global-market/.

In 2020, the MENA region had a record number of 342 parties (296 parties from the Middle East; 46 parties from North Africa), representing 14% of the total number of parties. The UAE ranked 6th in the worldwide party nationality ranking and Dubai ranked 7th among the most selected cities as place of arbitration. See ICC 2020 Dispute Resolution Statistics, available at https://iccwbo.org/dr-stat.

Dania Fahs and Diamana Diawara now act as ICC Arbitration and ADR Directors for, respectively, the Middle East and Africa (https://iccwbo.org/contact-us/contact-regional-directors/).

‘ICC Court to open 5th overseas case management office in ADGM’ (www.iccwbo.org, 21 Dec. 2020). The existing activities of the ICC Middle East and North Africa (MENA) representative office, established in ADGM in 2017, will be integrated into the ICC Court’s new case management structure, as agreed by ICC and ADGM.

See A Guide to Arbitration in the UAE, by H. Arab, G. Blanke, A. Farhad, M. Hussain, P. Punwar (ICC, 2020), Summaries of UAE Court's Decisions on Arbitration, by H. Arab, L. Hammoud, G. Lovett, ICC, 2013 (1st ed.) and 2017 (2nd ed.), https://2go.iccwbo.org/).

For practical guidance on expertise, see the updated Reports (2021) of the ICC Commission on Arbitration and ADR ‘Issues for Arbitrators to Consider Regarding Experts’ and ‘Issues for Experts Acting Under the ICC Expert Rules or the ICC Rules of Arbitration’ available at www.iccwbo.org/commission-arbitration-ADR.

Dania Fahs and Diamana Diawara now act as ICC Arbitration and ADR Directors for, respectively, the Middle East and Africa (https://iccwbo.org/contact-us/contact-regional-directors/).