MENA International Arbitration Summit Dubai

Wolters Kluwer, Hong Kong has been organising International Arbitration Summit in Dubai every year from 2013 inviting Experts from all over the World in the field of International Arbitration and create an effective platform for the Corporate counsels from UAE and arbitral Institutions from the Arab countries to get updated. This year said summit was organised in Park Hyatt hotel in Dubai on 04^th February 2015.

 The only speaker from India was Mr. S. Ravi Shankar, an International arbitration lawyer, Senior Partner of Law Senate law firm based in Delhi and an Advocate on Record in the Supreme Court of India. The other speakers in that session were Victor P Leginsky, Chartered Arbitrator from Dubai, Christopher Grout, Registrar, Qatar International Court and Dispute Resolution Centre, Ruth Stackpool, Hong Kong International Arbitration Centre (HKIAC), Sami Houerbi, ICC Dispute Resolution service, Dr Tarek Fouad A Riad, Chairman of Dubai International Arbitration Centre Executive Committee (DIAC).

The Chairman Mr. Victor requested all the arbitration Institutions to present their Institutions and requested Mr. Shankar to talk about “The factors to be taken into consideration by the parties while selecting the arbitral Institution”. Mr Shankar Made a Presentation explaining the 10 points the Corporate counsel need to keep in mind while advising their company to choose an Arbitral Institution, which is normally done at the time of finalising the arbitration agreement. Those 10 points are as follows:

1. The Enforceability Issues: The first thing to be considered is the enforceability of the award passed in a particular seat of arbitration where the arbitral Institution is situated. For example if a seat which is chosen by the parties is not a signatory to New York convention on enforcement of foreign awards and the seat does not have any other agreement with the countries from which parties are hailing from, then the award passed in that seat will not be recognised in those countries as an “Enforceable Foreign Award”. That will delay the process of enforcement of that award after the arbitration proceedings. Hence the parties should choose a seat which is recognised by the countries of both the countries, with respect to enforcement of International arbitral awards. 

2. The Arbitration Act of the Seat: More than 150 countries all over the World have enacted or adopted an International Arbitration Act in the lines of UNCITRAL model law. But at the same time most of the countries have modified certain aspects of the said model law on the basis of their national thoughts. There are many countries who are still having International arbitration legislations very much different from the Model law. Once a party chooses a seat the supervising courts will exercise the jurisdiction and deal with the issues on the basis of their own legislation governing the International Arbitration. So the 2^nd important factor to be taken into consideration is the International arbitration legislation of the seat.

3. Rules of the Arbitral Institution: The rules of the arbitral institution is next important aspect parties should look into. Some Institutional Arbitration centres have effective administration of cases through updated modern procedure which effectively addresses all the potential issues which arise in multi jurisdiction disputes but other centres have limitations. For example all major Institutions have incorporated emergency arbitration procedure and consolidation of arbitral proceedings arising out of different contracts and different parties into a single arbitration in the last few years. Hence the management efficiency and the modern rules of the Institution are important.

4. Costs of the Arbitration: The costs of international arbitration differ in a big way from institution to institution because of the arbitral institution charges, fees of the arbitrators, number of arbitrators as decided by the parties and costs of the corresponding litigation in the seat in which the arbitral institution is situated. So parties on the basis of the potential disputes which may arise out of a contract should decide the arbitral centre taking into consideration the possible costs in case of an arbitration. For example some Arbitral Institutions calculate the fees on the basis of the total of claim and counter claim amount, some decide on the basis of the work load of the arbitrators and some leave various fee options to the parties for their decision. Some arbitral institutions insist to go for a single arbitrator even though parties had incorporated an arbitration clause which provides for three arbitrators, on the basis of the size of the claim. These kind of cost efficient rules help the parties to avail arbitration without fear of exorbitant costs. So parties should opt for an arbitral institution which provides for a flexible and client friendly Rules.

5. Geographical Location: In International contracts involving parties from different jurisdictions, parties prefer to choose a neutral seat arbitration centre to avoid one party having the advantage of having his native jurisdiction. If parties choose a geographical location which is far away from both the parties that will put both the parties into a lot of difficulties because of the costs of travel, travel time etc., For example, if parties are from North and South America, the Institution chosen by parties if located in Asia the parties will find it very difficult in case of a dispute. Because not only for the arbitration but also for the related litigation, parties need to travel a very long distance. So parties should choose only a convenient Institution.

6. Language of the Country of the Arbitral Institution: Even though arbitrators can be chosen by parties with the required language proficiency, if the Arbitral Institution or the country in which it is situated does not understand the language getting para-legal support, court assistance, lawyers with double language proficiency will make the process bit difficult. Even though translators are available everywhere these days, getting proper translation of technical material and legal documents are not that easy. For example parties from French speaking countries if they choose a centre in a French country or in Paris to conduct their arbitration proceedings that will make their life easier. So the next point parties should give importance while selecting the arbitral institution is is language of the Arbitral Institution.

7. Political & Legal stability: Even though, the role of the State is not irrelevant for an International Arbitration, conducting a commercial or an investment arbitration proceeding in a country where there is a civil war or there is an issue of security, is difficult. More over the stability of the legal procedure and legislations have direct connections in any country. Hence if the political stability is not there in a country, the legal stability may also be doubtful. Hence parties should choose an International arbitral centre situated in a politically and legally stable country.

8. Approach of Supervising Courts towards Arbitration: The arbitral Institution may be efficient, less expensive, with modern Rules etc., but if the supervising courts in that Jurisdiction is interfering into all the awards then the finality of an arbitral award will be under question. The most important favourable point for a successful arbitral Institution is the pro-arbitration supervising courts. If the supervising courts are pro arbitration then the interim awards, interim orders and challenge proceedings will conclude in the fair and expeditious manner. Hence the approach of the supervising courts is an important point while selecting an arbitral Institution.

9. Representation of Foreign lawyers: All leading International arbitral Institutions and their countries do not restrict the representation by foreign arbitration lawyers in the arbitral proceedings. Because if there are any restrictions to such appearance by foreign lawyers that will surely make the arbitral proceedings complex. The party should have the full autonomy to choose who should represent them in the arbitral proceedings. Hence the parties should consider the point whether the foreign lawyers are allowed to appear in the arbitration proceedings or not.

10. Panel of Arbitrators: Many international arbitrations are conducted by a Sole arbitrator and mostly parties authorise the arbitral tribunal to appoint the arbitrators. In such a situation, the Registrar/President of the arbitral Institution (ICC Court in case of ICC Rules) play a very important responsibility of choosing the right arbitrator to ensure best resolution of the disputes between the parties. Hence it is important to have not only popular but also affordable experts with unquestionable integrity in the arbitration panel. Hence the strength of the panel is the 10^th item which should be taken into consideration while taking the decision with regard to choosing of the International Arbitral Institution.