6 highlights from the 2021 ICC MENA Conference on International Arbitration

The event featured leading dispute resolution specialists from Abu Dhabi to Tunis, who exchanged on a range of trending arbitration topics including ICC’s new case management office in Abu Dhabi to the role of experts in infrastructure cases.

Here are six highlights from our latest regional event.

1. Heads of the ICC Court and ADGM came together to discuss the opening of the ICC Court’s new case management office at the ADGM Arbitration Centre

Linda Fitz-Alan, Registrar and Chief Executive of the Abu Dhabi Global Market Courts (ADGM), along with Alexis Mourre, President of the ICC International Court of Arbitration (ICC Court) provided participants with a timely update on the opening of the ICC Court’s latest case management office within the Abu Dhabi Global Market (ADGM). This is the ICC Court’s fifth overseas opening after Hong Kong, New York, Sao Paolo and Singapore. Mr Mourre touched on the relationship between ICC and the ADGM and its potential to serve the global dispute resolution community, while meeting the increasing needs of the region. Ms Fitz-Alan highlighted that with ICC’s continuous desire to innovate, as well as its encouragement of inclusion and diversity, the new office would be a game changer for dispute resolution in the MENA. The event marked Mr Mourre’s final MENA Conference as President of the ICC Court. Claudia T. Salomon is slated to succeed Mr Mourre following formal election in June, for a term commencing on 1 July.

2. Professionals exchanged first-hand experiences on the various judicial approaches to arbitration in the MENA

Mohamed S Abdel Wahab, Founding Partner and Head of International Arbitration of Zulficar & Partners, moderated the first panel session, polling the audience on whether national courts in the MENA region were becoming more open to arbitration. A total 62% of participants responded yes to the poll while just under 8% said no and 30% of participants were not sure. With the aim of convincing unsure participants during the panel session, Mr Abdel Wahab polled the audience a second time, asking if the judicial use of public policy to set aside or refuse enforcement of arbitral awards in the region was more restrictive than 10 years ago. Almost 35% of participants responded yes, 25% said no, while the majority, 40%, were unsure.  A final poll asked if enforcement of awards in MENA could be improved. About 38% of participants believed that creating specialised circuits in courts for enforcement applications would be the best way forward – with 26% opting for achieving a uniform application of the New York Convention principles, 22% choosing to simplify the procedure and time for enforcement, and just 14% preferring to amend arbitration laws.

Bassam Mirza, Founding Partner of PKM Avocats, addressed what he described as “a particularly tricky” legal matter, arising from legislation on commercial agent contracts in countries throughout the region. Discussing the invalidity of arbitration clauses in commercial agent contracts, he analysed the many approaches adopted in each jurisdiction and highlighted the impact that such protective regimes might have on international arbitration. Mr Mirza proposed for the matter to be addressed by national legislations, stating that it was a conflict of laws and jurisdictions, and that a balance could be struck between the need for liberal pro-arbitration regimes and respect of national mandatory provisions.

Acknowledging that arbitration remains under the scrutiny of the courts, Ali Al Hashemi, Managing Partner of Global Advocacy and Legal Counsel, presented the positive developments of international arbitration in the United Arab Emirates (UAE) – including the adoption of new modern arbitration laws – and for national arbitration, including the limited grounds for annulment of awards. Mr Al Hashemi underscored there is room for improvement pointing out case law pertaining to the joinder of parties in pending court proceedings despite the existence of an arbitration agreement or challenges as to the capacity of signatories of the arbitration agreements and its invalidity.

Ahmed Ouerfelli, an attorney at law with Ouerfelli Attorneys and Counsels, explored recent trends pertaining to the scope of setting aside an award by the courts and general enforcement issues in relation to public policy. According to Mr Ouerfelli, judges tend to be more arbitration friendly based on factors such as modern legislation which clearly states the extent of a judge’s power, as well as the influence of policies of newly established arbitral institutions and the discussion of publicly available arbitral awards. There are, however, some areas of concern relating to public policy issues and uncertainty, which stems from an absence of precedent. In this regard, Mr Ouerfelli identified a certain movement towards a uniform approach in public policy based on the fundamental rights of access to justice and the right to property.

Dame Elizabeth Gloster, a former judge and current arbitrator with One Essex Court, discussed whether stakeholders are meeting party expectations in managing the proceedings fairly and effectively to avoid the setting aside of awards or non-recognition. Dame Gloster first addressed whether the ADGM provides a safe seat for arbitration. With concrete examples based on her experience as Justice of the ADGM Courts, she presented the robust way in which judges at the facility approach arbitration. She also elaborated on the arbitration friendly approach of the ADGM. Dame Gloster concluded that parties are entitled to expect arbitrators to adopt robust management procedures and not to limit themselves to simple decisions based on fear of certain “procedural paranoia”. She also added that arbitrators were entitled to expect realistic and non-exaggerated submissions from parties.

3. Participants’ questions were answered about the added value of the ICC Court’s newest case management office

This roundtable session was moderated by Dania Fahs, Deputy Director of ICC’s MENA Representative Office, and Sami Houberi ICC Dispute Resolution’s Regional Director for Eastern Mediterranean, Middle East and Africa.

Alexander G. Fessas, Secretary General of the ICC Court, touched on some of the motivations behind the opening of the case management office. First and foremost, was the demand of arbitration in the region being high, with statistics showing that 11% of all parties that have engaged in ICC Arbitration over the past decade have come from the MENA. Mr Fessas also explained that establishing a team in the region will allow ICC to support local talent – a key objective. The ICC Court firmly believes in the benefits diversity brings to their dispute resolution work. He went on to share that ICC service excellence would be maintained and would remain an overriding priority, with the local team working in full collaboration with the ICC Court  Secretariat in Paris, France. Mr Fessas concluded that the operational launch of the office was expected in April 2021.

Discussing the benefits of the new case management office, Adam Peters, Senior Legal Counsel at ADGM Courts underscored the ADGM’s robust legal framework; its supportive, arbitration friendly judiciary; its bespoke arbitration facility that can accommodate in-person and remote hearings. This, he said, means that parties can have real confidence in the arbitration infrastructure, with full-service coverage—from administrative to physical. This partnership will form part of the arbitration package of dispute resolution available to the users in the UAE and facilitate and reinforce its position in the global market.

Ziva Filipic, Managing Counsel at the ICC Court of Arbitration, shared that while there has always been expertise and a high work ethic within the ICC’s Secretariat in Paris, this new office would allow ICC to provide an even higher level of service locally, in ways they had not been able to without a physical presence. One example she shared was of the working week, which differs from ICC’s headquarters. Having a team in the region would allow ICC to act in real-time, creating new possibilities and strengthening relationships with users.

4. A dynamic debate was held on the increasing role of expert evidence in infrastructure disputes

Under the moderation of Alex Bevan, Partner and Global Head of International Arbitration at Shearman & Sterling, four speakers debated the question of the increasing role of expert evidence in infrastructure disputes, and discussing whether in these types of disputes, which tend to be fact heavy and pertain to complex technical issues, tribunals needed to have assistance to be able to fully understand and decide on a case. The Oxford-style debate was explained as a way of exchanging perspectives and may or may not have represented the real views of the speaker.

Sabrina Ainouz, a Partner at Squire Patton Boggs, argued in favour of using experts, stating that they are a logical response to the increasing complexity of infrastructure disputes—especially in light of advancing technology and the singularity of such projects. Ms Ainouz also argued that experts are necessary for both the counsel and the tribunal to be able to understand and decide upon the intricate issues at stake. It is the duty of the counsel to hire experts to duly present their client’s case. Experts are also key to counsel’s understanding and framing of the case. They have learned to optimise their recourse to experts and seek their help in presenting their arguments before a tribunal. She also explained how experts assist tribunals, enabling more informed decisions by providing arbitrators with an easy-to-understand toolkit.

In response to Ms Ainouz’s arguments, Roberta Downey, a Partner and the Global Head of Construction and Engineering at Hogan Lovells, argued that a case should be decided based on documentation, which, she argued, stated facts of the case. Fact witnesses with expertise who have followed the projects are able to read the documents and present them to the arbitral tribunal, whereas experts are merely vehicles by which the parties may attempt to reargue the facts. According to Ms Downey, experts are distant from projects, often allowing them to ignore their unique particularities. Their approach is more theoretical, basing commentary on the data they receive, which can also, at times, be incomplete or insufficient. Further, she argued that party appointed experts end up feeling partisan, failing to be truly independent. In addition, Ms Downey noted the expense of hiring external experts is often greater than using an in-house team.

Next up, Iryna Akulenka, a Managing Consultant at HKA, stressed that the primary aim of experts is to provide tribunals with specialist knowledge that is otherwise lacking. That is why, she said, tribunals will continue to ask for assistance from experts. Ms Akulenka went on to say that although teams are now using algorithms and artificial intelligence to interpret big data, the use of experts to take on this task is still done to ensure information is digestible for the tribunal. She argued that arbitrators tend to make their own independent decisions, without being influenced by the experts—and that parties should always exercise their right to choose their arbitrators wisely. Parties need to feel comfortable knowing that decisions will be sufficiently safeguarded.

Wrapping up the debate, Andrew Mellor, the Managing Director of Construction Advisory Services for J.S. Held, argued that while experts are talented and have useful skills, two sets of advocates for the same case is not necessary. He went on to describe several types of experts and how each negatively affected their cases based on their perceived expertise. Mr Mellor stated that many construction expert witnesses fail to understand the procedural nuances of complex arbitral processes, processes that they act and service to.

5. A tribute was made to Sami Houerbi for his almost 25 years of ICC service

In this final session of the 2021 ICC MENA Conference, Mr Houerbi was interviewed by Sana Belaid, Senior Counsel for CISCO and Member of the ICC Court. He reflected on his long career with the world’s leading arbitral institution. Be sure to watch the session in its entirety.

6. Participants were able to join a number of side events to complete their ICC MENA experience

The event week kicked off with an advanced-level training, organised by the ICC Institute of World Business Law, on the conduct of proceedings and case management from the perspective on an arbitrator. The training, which included 60 professionals, was the first for Eduardo Silva Romero, who officially became Chair of the ICC Institute in January.

Also on the agenda was the launch of ICC’s newest capacity building events, the ICC SME Labs. The inaugural session brought in more than 360 registrations and discussed how mediation is best suited to resolve commercial disputes for small- and medium-sized enterprises (SMEs) and startups. The SME lab series aims to showcase why dispute prevention and effective dispute resolution are vital components of risk management for businesses of any size and how they can choose the most appropriate mechanism that best fits their needs. The next workshop will focus on ICC Expedited Arbitration and will take place on 16 March, followed by a third session on ICC Expertise, which runs on 28 April during ICC Turkey’s Arbitration Week.

The ICC Young Arbitrators Forum – which provides a variety of opportunities for individuals under 40 years of age to gain knowledge, develop their skills and understand ICC’s arbitral procedure and other dispute resolution service – also held a side event. The panel discussed the regional economic and financial impact of the pandemic over the last 12 months and saw and exchange of views on how today’s uncertainty in the suitability of adopting tried and tested methodologies, processes, and procedures is shaping the way in which practitioners approach current and future claims in international arbitration proceedings.

The final event of the week focused on diversity and was co-organised with ArbitralWomen and Equal Representation in Arbitration Pledge. The panel showcased why diversity, in all its forms, was essential to a more effective and strategic dispute resolution process.

Interested in watching (or re-watching) the 9th edition of the ICC MENA Conference on International Arbitration? All discussions are now available for viewing via the ICC DRS app.