30 November 2017
Report on the Euro-Mediterranean Community of International Arbitration’s November 2017 Conference in Bahrain
The Bahrain Chamber for Dispute Resolution (BCDR-AAA), the United Nations Commission on International Trade Law (UNCITRAL) and the Organisation for Economic Co-operation and Development (OECD) jointly hosted the Fourth Conference for a Euro-Mediterranean Community of International Arbitration on 19 November 2017 in Manama. It followed those held previously in Marseille, Cairo and Milan. The conference took place under the patronage of Bahrain’s Ministry of Foreign Affairs and Ministry of Justice.
The day started with three opening addresses by Shaikha Haya Rashid Al Khalifa, the chair of BCDR-AAA’s Board of Trustees, UNCITRAL Legal Officer Luca Castellani and BCDR-AAA’s CEO Nassib G. Ziadé. All three speakers welcomed the recent decision by UNCITRAL to establish an UNCITRAL regional centre for the Middle East and North Africa in Bahrain. Ziadé thanked UNCITRAL’s former Secretary Renaud Sorieul for his efforts in preparing the way for the new centre and wished Sorieul’s successor, Anna Joubin-Bret, well in her new position and said that BCDR-AAA was looking forward to cooperating with her. The opening addresses were followed by observations on the current business and investment climate in the MENA region by OECD Policy Analyst Diane Pallez-Guillevic.
The day continued with a session on the impartiality and independence of arbitrators and the need to avoid conflicts of interest in international commercial arbitration, moderated by Sophie Nappert, arbitrator at 3 Verulam Buildings chambers in London. The session offered academic, judicial and institutional perspectives on the subject from speakers Thomas Clay, Professor at the Faculty of Law of Sorbonne University (Paris 1) and Managing Partner of Clay Arbitration Office; Ahmed Ouerfelli, Senior Partner at Ouerfelli Attorneys & Counsel and a former Judge in Tunis; and Stefano Azzali, Secretary-General of the Milan Chamber of Arbitration.
Clay remarked that if arbitration was to continue developing, certain fundamental principles, including impartiality and independence, had to be respected. He recognized that arbitrators “are not robots, devoid of emotion, history and culture” and that they interact socially and professionally. However, he insisted that this should not be allowed to undermine their strict impartiality when in office, which is “a matter of personal ethics.”
Ouerfelli emphasized the need for full disclosure of any circumstances that might give rise to concerns over possible conflicts. He added that disclosure should be spontaneous and not simply provoked by pressure from parties, and that it should be confined to what is “reasonable and relevant.”
Azzali stressed the key role played by arbitral institutions in promoting and safeguarding independence and impartiality through such means as education, instituting codes of conduct and ethics, applying sanctions, and making arbitral appointments subject to their confirmation.
During the ensuing debate, a delegate from Algeria expressed concern that some arbitrators from outside the region showed disregard for the judicial norms peculiar to the region, while arbitrators from within the region were insufficiently informed on how conflicts were dealt with. Azzali responded that some institutions, including his own and the London Court of International Arbitration, were now publishing challenge decisions, which showed the rigor with which concerns over bias were addressed.
The second session was devoted to practical aspects of investment arbitration procedure and transparency. It was again moderated by Sophie Nappert. Hussein Haeri, Partner at Withers LLP in London, described the broad offers of consent to arbitration typically contained in investment treaties and how such offers were accepted by covered investors simply initiating proceedings.
Michael Hwang, Chief Justice of the DIFC Courts in Dubai, spoke about investment arbitration under the 1981 Agreement for Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference, now the Organisation of Islamic Cooperation (OIC), and, in particular, the case of Hesham Talaat M. Al-Warraq v. The Republic of Indonesia.
Lastly, UNCITRAL Legal Officer Judith Knieper described the UNCITRAL instruments on transparency in investment arbitration, namely the 2014 Rules and the Mauritius Convention on Transparency. She also looked ahead to further work UNCITRAL was expected to start at the end of November with a view to possible reform of investor-state dispute settlement.
The third session of the day provided delegates with an opportunity to discuss practical issues arising from the morning session on independence and impartiality against the background of the IBA Guidelines on Conflicts of Interest in International Arbitration, the UNCITRAL Model Law on International Commercial Arbitration and BCDR-AAA’s new arbitration rules. The panel members were Adrian Winstanley, arbitrator and former Director General of the LCIA; Nagla Nassar of Nassar Law, Cairo; and Ismail Selim, Director of the Cairo Regional Centre for International Commercial Arbitration.
The examples discussed included a case in which an arbitrator had demonstrated bias by overreacting to a challenge; relations between counsel and arbitrators; successive appointments in related and unrelated cases; repeat appointments; and an arbitrator’s utterances that suggested prejudgment of a case.
There followed a training session on investment arbitration procedure. The trainers were Antonio R. Parra, former Deputy Secretary-General of ICSID; Dany Khayat, Partner at Mayer Brown in Paris; and Jeremy Sharpe, Partner at Shearman and Sterling in London.
Parra led a discussion on the preliminary steps leading up to an ICSID arbitration under an investment treaty, including any notice of dispute and waiting period before filing the request for arbitration, and the screening and registration of the request. Khayat pointed out that the lack of a bilateral investment treaty between an investor’s home state and the host state did not necessarily rule out the possibility of an investor-state claim, as a multilateral investment protection treaty (MIT) might be applicable. MITs of special relevance to the MENA region include the 1980 Unified Agreement for the Investment of Arab Capital in the Arab States and the above-mentioned 1981 OIC Agreement, each of which had already served as the basis for several investment arbitrations.
The last part of the session, led by Sharpe, covered dispute resolution issues to consider when preparing an investment law or treaty. Sharpe emphasized the steps a state should take in preparation for possible arbitration claims against it. These include establishing standard operating procedures for responding to notices of disputes and claims. He underlined the importance of giving clear authority to the entity representing the state, so that it could act effectively. Other essential steps he noted were creating mechanisms to ensure coordination within and outside the government, quick recruitment and proper supervision of counsel, and funding to cover the costs of arbitration.
BCDR-AAA CEO Nassib G. Ziadé delivered the closing remarks at the conference. Click here to read a summary of Ziadé’s closing remarks.