24 JUN 2018
Arbitration has been used to settle commercial disputes in many areas for hundreds of years. The process of using arbitration, rather than the courts has become more common, with the regional construction sector making it their preferred method to resolve disputes.
With a new UAE Arbitration Law (Federal Law No. 6 of 2018 on Arbitration in Commercial Disputes) coming into effect from 16 June 2018, arbitration has become even more popular in the region.
Based on the internationally recognised and accepted UNICITRAL Model Law, the new UAE Arbitration Law has been designed to attract further foreign direct investment into the UAE, reinforcing its place as the most progressive market to do business in.
A vast number of construction and infrastructure projects are currently in the pipeline in the Middle East, attracting foreign investment and due to the introduction of this new law, qualified and reputable arbitrators are more in demand.
To understand the most important qualities for newly qualified arbitrators to have to obtain work, and how they can build their reputation in the built environment, we spoke to Victor Leginsky, chartered arbitrator and RICS faculty member, who teaches on the RICS Diploma in International Arbitration (MENA).
Typically, this comes with maturity and experience in life and in one’s career. Arbitrations are judged mainly on the facts. To be able to ascertain the facts ('the occurrence of the fact in issue must be proved to have been more probable than not' based on the evidence, not your knowledge) requires a great understanding of the way systems, people and the world work. This comes with experience.
You must remember that you are providing a service to commercial parties that want you to come to a final and binding conclusion about their dispute. It is not about you. It is about the Parties, their dispute and the law of their contract. You must always be diplomatic, respectful and professional. You are not a judge, and you have no inherent power, so your power derives from respect, consistency, diplomacy, fairness and from being prompt and efficient.
You need to be a good project manager as arbitration is a 12 to 24-month project that you must bring in on time and budget.
This will allow you to quickly and concisely apply the applicable rules and the law of the seat in commercial arbitration. Such procedural law is that of due process, fairness, confidentiality, and ensuring every party has a reasonable opportunity to present its case. You must also demonstrate that you can come to grips with various bodies of substantive law, as these will be applied as the law of the contract.
As your evident duty is to make an enforceable award, your writing must be clear and unambiguous, so there is no room for a court to set your award aside. Every email and letter must be clear and consistent over the 12 to 24 months that you write them, culminating in a clearly-written and well-substantiated award.
Commercial arbitration skills can come through the excellent courses taught by dispute resolution organisations such as CIArb or RICS, which offers the distance learning Diploma in International Arbitration (MENA) specifically for this region, designed to increase the number of built environment specialist arbitrators. The diploma is intended for those who are looking to act as international arbitrators or professionals who could represent parties in arbitration situations.
Once you have some basic certification in commercial arbitration, join an arbitration organization and become involved. Make it well known that you are available to serve as a tribunal secretary as this will give you exposure to arbitration cases and practitioners.
You can also consider working for an arbitration institution as a case manager or on their legal staff. This will give you excellent exposure to commercial arbitration cases and the players in international arbitration.
Over the years there has been a renewed appetite for arbitration, with the construction and engineering sector embracing it more openly, increasing the use of it going forward.
"These tips may seem archaic, as great advances are being made in technological dispute resolution systems. However, as long as clever counsels are dreaming up new and more creative arguments to either advance a case or defeat it, I believe experienced, honest and hard-working arbitrators will continue to be needed to determine commercial disputes and assist in the smooth working of the world’s commerce," says Leginsky.
The new UAE Arbitration Law has been designed to attract further foreign direct investment.