BCDR Joins Tribute to Dr. Ahmed El-Kosheri
The Bahrain Chamber for Dispute Resolution (BCDR) today took part in a tribute to the late Dr. Ahmed El-Kosheri, which took place on 17 June 2019 at the Cairo Regional Centre for International Commercial Arbitration (CRCICA) in Egypt. The event was introduced by CRCICA’s director, Dr. Ismail Selim and took the form of presentations on two themes: “Dr. Ahmed Sadek El-Kosheri: A Prominent Figure in Egypt and Worldwide” and “Professor El-Kosheri’s Legacy: Reflections on Some of his Most Important Contributions.” The full program can be viewed here.
Discussions on the first theme were led by Dr. Nabil Elaraby, the chair of CRCICA’s Board of Trustees and a former secretary-general of the League of Arab States and Egyptian foreign affairs minister. Speakers included Prince Dr. Bandar Bin Salman Al-Saud, a vice‐chair of CRCICA’s Board of Trustees; Professor Dr. Mahmoud Samir El Sharkawy, a professor of commercial and maritime law and former dean at Cairo University law faculty; and Counselor Mahmoud Fahmy, a former vice-president of the Egyptian Council of State and chair of the country’s capital markets and investment authority. This session closed with the screening of a short documentary on Dr. El-Kosheri.
The second session was chaired by Dr. Tarek F. Riad, managing partner of Kosheri, Rashed & Riad Legal Consultants and Attorneys at Law and chair of the Executive Committee of the Dubai International Arbitration Centre. Dr. Abdel Hamid Al-Ahdab, president of the Arab Association for International Arbitration, delivered a speech entitled “Dr. Ahmed El-Kosheri: Greatness and Love Story,” which was followed by remarks from Dr. Philippe Leboulanger, founding partner of Leboulanger & Associés and a vice‐chair of CRCICA’s Advisory Committee and member of its Board of Trustees. Professor Moufid Shehab, a professor of public international law at Cairo University, president of the Egyptian Association of International Law, and a former Egyptian minister of parliamentary and legal affairs, then spoke on “Dr. Ahmed El-Kosheri and the Taba Case.”
The second session ended with a presentation by Professor Nassib G. Ziadé, BCDR’s CEO and a vice‐chair of CRCICA’s Advisory Committee and member of its Board of Trustees. Professor Ziadé began his speech entitled “Remedies in the Context of Corruption in Investor-State Arbitration” by referring to Dr El-Kosheri’s qualities, experience, encyclopedic knowledge, and deep and original reasoning. Professor Ziadé also recalled that Dr. El-Kosheri was a leading authority on domestic and international law – equally at ease with public international law, including land and maritime border disputes, as with private international law, including international commercial arbitration – as well as international investment law and international administrative law. Professor Ziadé expressed admiration for Dr. El-Kosheri’s exemplary reputation, achievements, modesty, and generosity, and praised his remarkable role in shaping the legal rules that govern investment issues, describing him as the precursor of investment-treaty arbitration.
Professor Ziadé then discussed legal remedies to counter corruption in investor-state arbitration. He noted that claims of corruption are more often raised by the state hosting the investment than by the investor. In such cases, if the tribunal finds that corruption did in fact occur, the investor’s underlying substantive claim will likely be dismissed on either jurisdictional grounds (if the investment treaty requires the investment to be made “in accordance with the law”) or the merits (on the basis of the “clean hands doctrine”).
Professor Ziadé also considered two ICSID cases in which the arbitral tribunals concluded that the investors had engaged in corrupt practices, namely World Duty Free v. Kenya and Metal-Tech v. Uzbekistan. Both cases were dismissed, the first as not being admissible and the second as falling outside the tribunal’s jurisdiction. Though he fully agreed with the premise that a contract that hides corrupt payments should be null and void, Professor Ziadé disagreed with the outcome of the awards, which punished only the investors (claimants) while exonerating the states (respondents) whose officials also might have had unclean hands, or might even have initiated the corruption themselves. Professor Ziadé noted that addressing the issue of corruption involves moral and policy questions in addition to legal ones, with some arbitrators inclined to impose the harshest punishment against corrupt investors, even if this incidentally leads to some unfair results. He cautioned that such an approach, if followed blindly without carefully considering the circumstances of each case, could foster the culture of corruption instead of helping to eradicate it. Professor Ziadé’s full speech can be viewed here.
BCDR had previously paid homage to Dr. Ahmed El-Kosheri at a ceremony in Bahrain in March 2015. Attended by some 150 of Dr. El-Kosheri’s colleagues and friends from around the world, as well as members of the Bahraini legal community, the gathering was addressed by Sheikha Haya Al Khalifa, the chair of BCDR’s Board of Trustees; Mr. Florian Dupuy, of counsel at Wagner Arbitration; Dr. Philippe Leboulanger; Mr. William K. Slate II, a former president and CEO of the American Arbitration Association; and Professor Nassib G. Ziadé. The event was marked by the release of a book in honor of Dr. Ahmed El-Kosheri entitled Festschrift Ahmed Sadek El-Kosheri: From the Arab World to the Globalization of International Law and Arbitration. Published by Kluwer Law International and edited by Dr. Mohammed Abdel Raouf, Dr. Philippe Leboulanger, and Professor Ziadé, the book includes articles by 46 academics, practitioners, and colleagues of Dr. El-Kosheri on various legal subjects related to his work. The book’s table of contents can be viewed here.