“Go to work mum” and two arbitration centers were set up…
It is quite common for women to use references to children and family when talking business unlike men,and that is due to the very clear differences between the forms of language typically used by women and men.Therefore,my choice of my child’s words,isprobably a reflection of my motherly feelings towards the projects I ventured with passionately aimed at realizingthe vision of Dubai in setting itself as an Arbitration hub with not one but two arbitration centers.
My involvement with ADR was not planned, subsequently the hostility and apprehensiveness of many was quite unsettling, but the pride I felt until recently, watching the Dubai International Arbitration Center and the DIFC-LCIA Centre, growing into the top ADR institutions in the region, successfully setting the scene for arbitration at its best albeit the varied and contrasting opinions and legislative reach, was to say the least beyond words.
The DCCI
Joining the DCCI as a legal researcher in 2002 was a decision I made while on my way back home from my son Majid’s nursery on September 4th, after being a house wife and mother for more than 5 years. When he said softly“ go to work mum” while waving goodbye, I realized that it was time for me to look for something I love to do besides looking after my beautiful family.
The degrees I held in Law, were effectively my pass to getting the job I sought with the legal department together with my fluency in Arabic, English and Frenchin addition toa working experience, although considerably short,with two of the top international law firms in Dubai. The HR Director had a brief look at my CV and hired me on the spot.
The DCCI legal services were focused on mediation and the legal team occupied the left side of the 9th floor where I handled complaints from and against the business community.Acting as a mediator was interesting until I was introduced to Arbitration officially by the Director General of the DCCI when asked me to start working on arbitration cases filedwith the “Centre for Commercial Conciliation and Arbitration” created in 1994. The Committee running the Center, was formed of 5 members of DCCI board. The chairman of the committee was Mr. KhalifaJuma AL Nabooda who was a keen supporter of Arbitration as an Alternative Dispute Resolution mechanism and was keen to take the practice to the next level where the Dubai International Arbitration Centre was to be created as an autonomous, permanent, non-profit institutionto be located on the 14th floor of the magnificent glass quarters of the Dubai Chamber of Commerce & Industry (DCCI) overlooking the creek, aimed at providing the regional and international business communities with an exclusive service of conciliation & arbitration at affordable rates.
The work I got thrown in ultimately was overwhelming,for working with the Committee in case management and researching the law when ADR was not much developed provedquite challenging. The number of contracts with the DCCI referred to in terms of dispute resolution was considerably large for our resources which kept us quite busy.
The DIAC
A year later I was asked to move to the 14th floor when the offices were ready and I started working with the DCCI advisor on the set up of the DIAC as the Centre Manager. As a woman I suppose I was totally disregarded when the DCCI compiledits list for the DIAC candidates for the post of Director, yet I was asked to compile a list of Arbitrators, draft the rules and hire staff. Meetings with the big names of arbitration in the Arab world and elsewhere were scheduled at the center and events were held to announce the opening of the DIAC. The highlight of my work with the DCCI was the DIAC initial set upand the letter addressed to his Highness Sheikh Zayed Bin Sultan AlNahyan May he rest in peace, urging the UAE legislator to join the NY Convention. The letter wasdrafted by the DCCI advisor Mr. Nizar Saradastand myself.Prior to the UAE’s accession to the New York Convention in 1996, the enforcement of foreign awards before the UAE courts was, save for the application of relevant bi-lateral or other multi-lateral conventions, subject to the application of Article 235 of Federal Law No.11 of 1992 (the UAE Civil Procedures Code), which governs the enforcement of foreign judgments in the UAE.
The legislation applicable to arbitration was and continues to be the 12 provisions of the UAE Federal Law No. 11 of 1992, as amended (Civil Procedure Code). The applicable provisions of the Civil Procedure Code are not based on the UNCITRAL Model Law. Work on the first draft of the Arbitration law also started then and has been work in progress ever since.
The distrust of arbitration wascommon among the majority of UAE legal practitioners and UAE courts, and more specifically the idea of ceding jurisdiction to foreign arbitrators., hence convincing the UAE government with our argument for the NY convention signing was a great achievement and setting up the DIAC was a brave initiative.
As I was leaving the DCCI the DIAC in 2005 had a director, a board of trustees was beingset up and a draft of the Rules was in place. Replacing the former Conciliation and Commercial Arbitration Centre of Dubai Chamber of Commerce and Industry, the Dubai International Arbitration Centre (“DIAC”) was inaugurated in May 2003. Dr. HusamAlTalhuni was hired as a director. It is currently the busiest arbitration Centre in the Gulf region. The DIAC issued its own Arbitration Rules (“DIAC Rules”), applicable to all DIAC arbitrations commenced on 7 May 2007, consequently replacing the DCCI Rules of Commercial Conciliation and Arbitration of 1994 (“DCCI Rules”) which were drafted mainly with domestic arbitration in mind. The DIAC mission to set up as an autonomous entity was quite controversial, when the DCCI was not an autonomous organization itself. The non-profit institution issue was also anothermatter of controversyfor a while. The DIAC as to this moment, has been without a director for almost two years.
When the Dubai International Arbitration Centre (“DIAC“) was conceived in 2003 the case load was 34 cases and as I remember in 2005 it reached 60 while over 200 cases registered in 2009. In 2011 the case load was at its peak with 440 cases during the property crisis of Dubai coming down to 310 cases in 2013.
When the floor was opened for questions at the Arbitral Women event in Dubai last year, I asked the Chairman of the DIAC how many women they had on their board of trustees he answered none. The case managers are women and the DIAC has just posted on its website a Job Vacancy for the Director, which has been vacant for two years following the resignation of NassibZiade.
The DIFC
As I got pregnant with my third child I left the DCCI and in January 2006 I had my youngest child Shahab, and being the mother I am, I planned to stay home until he went to nursery as I did with his older siblings. But who said we could ever know what is coming??
In June 2006 I was asked by the DIFC to join the Corporate Governance Centre (HAWKAMAH) and started working immediately on the ESCA Corporate Governance Code. My law drafting skills, acquired at the DCCI were very much on demand at the DIFC since the authority was very busy drafting the DIFC laws and relevant rules. Months later the HR director of the authority asked me to join the DIFC Arbitration Centre where negotiations with the LCIA were on going. My office as an Arbitration Centre Manager was at the DIFC Courts building and with the temporarily appointed Director I was asked to travel to London to have the DIFC -LCIA agreement signed.
The DIFC- LCIA
From its inception, the Dubai International Financial Centre (the “DIFC”) was intent upon establishing a beacon for regional dispute resolution. In addition to the now well-known DIFC Courts, an arbitration center was to be created to provide alternative dispute resolution services (i.e. Arbitration and Mediation, together “ADR”) for local and foreign business in the region. In 2008 the DIFC negotiated an agreement with the LCIA pursuant to which arbitrations under DIFC-LCIA Rules would be managed and administered with LCIA’s assistancewas signed. The DIFC-LCIA Arbitration Centre (the “DIFC-LCIA” or the “Centre”) was established in 2008 and was described at that time by the Chief Justice Sir Anthony Evans as “essentially a joint venture between the DIFC and the London Court of International Arbitration (“LCIA”), one of the leading players in the arbitration world”.
The work we undertook to set up the Centre included drafting the Arbitration Law of DIFC which involved a panel of 5 lawyers and arbitration practitioners working on its final draft, together with two external firms. The final draft waseventually posted for consultation then issued not long after as Law No. 1 of 2008. The adaptation of the Model Law made the DIFC Arbitration Law practical and comprehensible to all arbitration practitioners.
The DIFC LCIA Arbitration Centre’s Arbitration and Mediation rules were a close adaptation of the LCIA Rules, with minor changes to align them with the DIFC LCIA Arbitration Centre’s needs.Adrian Winstanley, LCIA Director General was personally involved with the adaptation of the rules and I remember the long phone calls we had over certain matters to be considered in adapting the rules.
The Centre access to the LCIA’s unique database of arbitrators with the widest range of professional qualifications and expertise (legal and non-legal), was a great advantage to the joint venture. The DIFC-LCIA Arbitration Centre was established independently of the DIFC courts but recognizes that they exercise a supervisory role over disputes submitted to DIFC-LCIA Arbitration.
The launch event was held on 17 February 2008 and the DIFC-LCIA was inaugurated by His Highness Sheikh Maktoum Bin Mohammed Bin Rashid Al Maktoum, Deputy Ruler of Dubai.The Centre did close very soon after I quit the DIFCIn 2008 due to issues arising as to the constitutionality and jurisdictional reach of DIFC-LCIA and its ability to provide services to UAE and other companies incorporated outside the DIFC territorial jurisdiction. https://www.difc.ae/newsroom/press-releases/inaugurated-his-highness-sheikh-maktoum-bin-mohammed-bin-rashid-al-maktoumIn 2014 these issues were addressed by the passing of legislation to amend and restructure DIFC so that the technical objections to DIFC-LCIA would be put to rest.Having carried out the legislative steps, following renegotiated arrangements between the LCIA and the DIFC Dispute Resolution Authority the DIFC-LCIA has been relaunched, then reopened Last year with new arbitration rules (2016 Rules) replacing the former 2008 DIFC-LCIA Arbitration Rules for arbitrations commencing on or after 1 October 2016. Recently the former Registrar of the DIFC-LCIA left and was replaced in May 2017 by my dear friend Robert Stephen as the new registrar.
With the short-lived beginnings of the DIFC LCIA and the relaunch not so long ago, the case load seems not to be significant to publish but the LCIA in 2016 mentioned that the case load was 28 opened procedures, arbitration and other. The DIFC LCIA does have a woman on its board of trustees, Jackie van Haersolte-van Hof (Director General LCIA).
Attempted Suicide!!!
Do you still believe in Arbitration? My 1st year law school daughter asked me…..
When you have spent many years of your professional life working closely with legal practitioners and institutions promoting ADR and advocating Arbitration hoping ultimately to position the UAE as an attractive seat for arbitration, and when you have personally worked on modern rules and drafts of an Arbitration Law and wrote about it, as I did in the National in my Legal affairs Column in 2011, http://www.thenational.ae/thenationalconversation/comment/complex-legal-minefield-in-need-of-a-federal-overhaul you feel rather sad when your daughter choosing her elective subjects for her second year in law asks you whether arbitration is something she should consider, and you say you are not sure in light of the latest developments.
Our concern for years over the limited number of provisions pertinent to arbitration under the UAE Code and the lack of certainty as to how those provisions will be applied by the courts in validating the arbitral award seems now the least of our concerns when the UAE decided suddenly to make a change to the UAE Penal code Penal Code No. 3 of 1987, amended by Federal Decree Law No. 7 of 2016 adding arbitrators to experts and translators in Article 257 where criminal liability is imposed on those who issue decisions and opinions in contradiction with their duties of impartiality and neutrality.
Where did this amendment come from? Is it a result of the lack of regulatory initiatives deemed necessary for the practice to be lawful or may be the quality of arbitrators included in the arbitration centers’ lists? or is it related to the fact that arbitration is not working as it should be?What had gone wrong? “Was ADR really just an empty promise? We believed it was not, but lack of success with ADR at so many companies prompted us to take a closer look at how managers were implementing the ADR process”. This is a quote from the (Harvard Business Review report on ADR), which found that ADR as currently practiced too often mutates into a private judicial system that looks and costs like the litigation it’s supposed to prevent. At many companies, ADR procedures now typically include a lot of excess baggage in the form of motions, briefs, discovery, depositions, judges, lawyers, court reporters, expert witnesses, publicity, and damage awards beyond reason (and beyond contractual limits). https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does
The UAE sweeping regulatory initiativewhich caught the entire legal market by surprise, despite the comforting calls promising that the prosecution has been involved earlier in guerrilla tactics where parties filed criminal cases against arbitrators, did not act randomly ignorant of the profession standards, and indeed dismissed all such claims, did not stop a number of arbitrators from rejecting the appointment and was not even the end of the saga, but was followed by late last year Dubai Decree No. 19 of 2016 establishing a new judicial committee in Dubai, empowered to determine conflicts of jurisdiction between the Onshore Courts and the DIFC Courts to rule on conflicting judgments between the two. The Committee is comprised of seven members: three judges from the DIFC Courts, three judges from the Dubai Courts and the Secretary General of Dubai’s Judicial Council, with the President of the Dubai Court of Cassation (one of the three Dubai Court judges) having the casting vote. The committee was established following a series of much-publicized recent judgments, where the DIFC Court confirmed that DIFC law permits the use of the DIFC Court as a “conduit” to enforce both foreign and domestic arbitral awards against award/judgment debtors located in Onshore Dubai, even where the award/judgment debtor has no connection with the DIFC whatsoever.
Is this what you may call an attempted suicide, as many practitioners do choose to call it already? Or is this a step in the right direction for the regulatory mechanism to pave the way for an arbitration practice that will uniquely stand out as the new regime able to handle the believer, the non-believer and the ADR atheist?
Diana Hamade’
Attorney at Law
UAE
International Advocate legal services
Po Box 10223 Dubai