Launch of the Second Edition of Summaries of UAE Courts’ Decisions on Arbitration ( including DIFC courts )

Launch of the Second Edition of Summaries of UAE Courts’ Decisions on Arbitration ( including DIFC courts )
May 15, 2017

Mr. Mahmood Hussain delivered his speech during the conference co-sponsored by Mahmood Hussain Law Firm for the Launch of the Second Edition of Summaries of UAE Courts’ Decisions on Arbitration ( including DIFC courts ) held in The Capital Club, DIFC UAE last May 11, 2017.

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”It is truly great honor to be key note speaker today and to be among today distinguished speakers.

Ladies and gentleman. Welcome to the launch of ICC revised rules of arbitration and launch of the second edition of summaries of UAE court’s decision on arbitration and I’d like to particularly welcome the HE justice Shamlan and HE Justice Jamal.

As we all know, international arbitration faces many challenges these days. Businesses complain that arbitration takes too long as some national courts in some jurisdictions,  and as well is too expensive and does not meet their needs in a business environment that is more global and fast-moving than ever before.

As well, business complains that the arbitration become more complicated than 20 years ago where it was straight forward process get to hearing and get an award.   In today Arbitration, all kind of interim measure going on during the process, application for security of cost , huge disclosures of documents so many mini  battles while the main arbitration is running so the arbitration become another closed court room.

I believe it is important for us to understand what has led to success of international arbitration in order for us to build on success and to address the challenges.

In particular, international arbitration has contributed to the growth of the rule of law and legal order through quality of what arbitrator write in every individual case, as well the procedural freedom has given the international arbitration the freedom to reform some aspect procedural laws that has existed for centuries so I strongly believe that this is what fascinating about international arbitration lawyers has finally the opportunity to build bricks by bricks international commercial legal orders. 

Then what Arbitration means to our region? Is it new practice? Is it just western creature that is imposed on us?

JOSEPH SCHACHT in his famous book (An Introduction to Islamic Law) explain that in the Pre-Islamic Arab community,  Arab used resolve  their differences over matters such as property, succession, or torts, by hakam who is an arbitrator in our modern terminology. The hakam could be any male who possessing high personal qualities who enjoyed a favorable reputation in the community and whose family was noted for their competence in dispute settlement.

Arbitration continued as a dispute resolution practice in the prophet Muhammad and post-prophet Muhammad eras, as well. There are, in the literature, a number of examples of prophit taking on the role of a hakam before and after his Prophethood.

As well, Egypt and Morocco signed and ratified NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”) in 1959 which make them among few first nations in world to enjoy the benefit of this convention.

However, It is anomalous that modern commercial arbitration in the Islamic Middle East stands in stark contrast to the endorsements given to arbitration by both the Prophet and the Shariah. If blessed by the Prophet and by the Shariah, the vigorous utilization and enforcement of international commercial arbitration does not represent apostasy; rather the practice appears to be doctrinally inconsistent with religious principles.

The Koran, it appears, provides no rules regarding arbitration, rather it seems to provide guidance and direction toward the use of arbitration. Where Koranic doctrine is explicit, religious tolerance must let the Shariah rule for the believer.

However, if there is a doctrinal void or doctrinal gap as to the use of commercial arbitration, the use of international private law to fill the void or fill in the lacunae should be considered by Middle Eastern commercial lawmakers. For example, Kuwait is considering the bifurcation of domestic civil law and international private law.

While the traditions of the past provide comfort to believers, it is imperative to be cognizant of the present state of the world. In an ever-shrinking commercial world, religious-civil bifurcation would be an attractive starting point to provide comfort to the commercial business world that there was legal determinacy in the Islamic Middle Eastern arbitral process.

There should be no expectation that national arbitration statutes and regional conventions be uniform or identical. After all, this article addresses the arbitral practices and difference of a number of states. However, Mallet’s contentions should raise the eyebrows of foreign and Middle Eastern corporations.

Deleterious procedural tactics in order to delay, prolong, or ignore the implementation of

foreign arbitration awards is unacceptable in today’s commercial world. It is in the best interests of all parties, that such practices be stopped in order to allow a more efficient regional and global economy.

No experienced businessperson would suggest that international arbitration is essential to dispute resolution. Commercial arbitration is, however, a wellrecognized and vibrant method for international dispute resolution, as evidenced by the number of signatories to the New York Convention. Fairness demands that there be an attestation to the respectable progress that has taken place in the Islamic Middle East regarding commercial arbitration. Again, not ascribing cure-all qualities to commercial arbitration, sound, cogent, workable commercial arbitration laws can reach beyond the legalities of dispute resolution.

Such laws can represent an important factor in the international commercial relations between states. It takes little business acumen to ascertain whether an investor will put money into a country or region wherein implementation of the New York Convention is robust or into a country or region wherein implementation of the Convention is either lukewarm or lethargic. Regrettably, current oil prices might very well generate a “who cares” attitude from a state confronted with the potential loss of broad foreign investment due to its dispute resolution mechanisms.

One need not be a lyrical optimist to be sanguine about the future prospects for commercial arbitration in the Islamic Middle East. Currently, the “developed” world needs Middle Eastern oil and the prospects of international “arm twisting” are unlikely. However, the day will inevitably come when mutual commercial interests will intertwine and become so interdependent that international private law and Islamic law will stand where neither dominates the other; this day will be predicated on a mutual respect and understanding for each body of law, including its historical foundations and modern application.”