Mohamed S Abdel Wahab, Zulficar & Partners
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
The overarching principles of advocacy in the Arab world
Practising law is a profession that, with the judiciary, aims to achieve justice and advance the rule of law, and to safeguard the rights of defence and litigants’ civil rights and liberties. Traditionally, advocacy in the Arab world is perceived as a form of ‘standing justice’, in which an advocate is required and expected to uphold certain fundamental ethical and professional duties, including: (1) not knowingly presenting false evidence or contentions; (2) not making untruthful submissions to the court; (3) upholding the confidentiality of all the information and secrets disclosed by the client; (4) observing the law and maintaining integrity in every decision, advice and action undertaken; and (5) acting with honesty and decency, and within the limits of his or her mandate or instruction.
This is consistent with established international norms. For example, the International Bar Association (IBA) International Principles on Conduct for the Legal Profession (2011) Principle 5 reads: ‘A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards.’ Similarly, Principle 2 reads: ‘A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact.’ The Explanatory Note of the IBA International Principles on Conduct for the Legal Profession also states (at Paragraph 2.2) that: ‘A lawyer shall not knowingly make a false statement of fact or law in the course of representing a client or fail to correct a false statement of material fact or law previously made by the lawyer.’ Additionally, the international implication of Principle 1 is that ‘differences in jurisdictional approach should be taken into account in cases of cross-border or multi-jurisdictional practice. Every lawyer is called upon to observe applicable rules of professional conduct in both home and host jurisdictions (Double Deontology) when engaging in the practice of law outside the jurisdiction in which the lawyer is admitted to practice.’ Moreover, the IBA General Principles of the Legal Profession (2006), Principle 2 states: ‘A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact.’ Principle 5 state: ‘A lawyer shall treat the interests of his or her clients as paramount, subject always to his or her duties to the Court and the interests offsite, to observe the law and to maintain ethical standards.’ Note also that the term ‘court’ or ‘tribunal’ used in the Principles is defined as including ‘an arbitrator in a binding arbitration proceeding’.
The more detailed the procedural rules, the better
When approaching an arbitration case involving Middle Eastern parties, counsel should bear in mind that they are penetrating a legal environment largely dominated by the civil legal tradition, with influences of traditional concepts inspired by shariah law in some parts of the Middle East.
Concretely, this means that it is not infrequent that a number of concepts that are ingrained in the common law tradition, such as the practice of party-appointed witnesses or of cross-examination, are misunderstood by some party representatives who are not experienced in international arbitration. In these circumstances, the preliminary meeting between the parties and the arbitral tribunal will be an essential step towards ensuring that both parties agree on the basic rules that will frame the arbitration proceedings and understand how the subsequent stages of the arbitration will unfold.
The more detailed the procedural rules, the less room will be left for misunderstandings and diverging interpretations. For instance, in view of the importance of witness examination for both parties, it is essential to foresee at the outset of the arbitration and in the procedural rules, that all technicalities relating to oral evidence on the day of the hearing are determined. This includes a consideration for potential translations of oral testimonies and the use of appropriate and efficient technology if the witnesses are to be heard in different locations.
Due consideration is also to be given to the particularities of the law of the seat of the arbitration. If seated in the Middle East, the lex loci arbitri could disallow the application of principles that are well accepted in common law jurisdictions, such as the power of arbitrators to order interim measures, without the parties’ agreement to confer such power on the tribunal. Consideration should also be given to principles specific to certain Middle Eastern jurisdictions, such as the necessity for witnesses to swear an oath on a relevant holy book, failing which the arbitral award may be at risk of annulment.– Nayla Comair-Obeid, Obeid Law Firm
Arab laws do not generally uphold the fine distinction between ‘solicitors’ and ‘barristers’ that may exist in some common law jurisdictions. Advocacy in the Arab world includes a full array of services, including the submission of written and oral pleadings before courts or arbitral tribunals, as well as the provision of legal advice and representation of clients in contentious and non-contentious matters.
While an advocate always aims to safeguard the interests of his or her client, the overriding ethical and professional duties of an advocate necessitate that the latter achieves this aim through lawful means. In ICSID Case No. ARB/06/3 The Rompetrol Group NV v. Romania, the tribunal stated at Paragraph 19: ‘Counsel’s duty is to present his Party’s case, with the degree of dependence and partiality that the role implies, so long as he does so with diligence and with honesty, and in due compliance with the applicable rules of professional conduct and ethics.’ This requires avoidance of guerrilla tactics, abusive conduct and excessive aggression that may adversely affect the client’s interests. It is also of fundamental importance to note that an advocate’s obligation towards a client is an obligation to exert reasonable efforts and exercise care.
In fulfilling his or her role and representing his or her clients’ interests, an advocate in Arab jurisdictions enjoys similar privileges and immunities as are enjoyed by judges and public prosecutors. For example, an advocate’s office cannot be subject to seizure procedures and an advocate may not be detained or apprehended while performing his or her role without a lawful cause and after satisfying certain statutory conditions.
Specificities, challenges and prospects
Given the long-standing existence of advocacy as a profession in the Arab world, the legal profession has spawned its own culturally oriented practices and specificities, which have brought about a myriad of challenges and prospects that define the practice of advocacy in the region and so affect the manner in which arbitral proceedings are conducted in Arab jurisdictions. While this chapter does not aim to provide a full and comprehensive account of the practice of advocacy in Arab jurisdictions, it offers a high-level account of certain specificities of advocacy in international arbitrations hosted in Arab jurisdictions or involving Arab counsel.
Party representation in international arbitration involving Arab parties
The Egyptian Legal Profession (Advocacy) Law No. 17 of 1983 includes a provision that seemingly restricts the right to appear before arbitral tribunals to members of the Egyptian Bar, who in turn must be Egyptian (Article 3). However, the Egyptian Arbitration Law No. 27 of 1994 includes no such restriction and does not necessitate that lawyers represent parties. Accordingly, the Egyptian judiciary has adopted the correct approach, in the author’s view, of allowing foreign counsel and non-lawyers to appear before arbitral tribunals in Egypt and to represent parties, especially since the principle of party autonomy prevails in arbitration. The parties are free to choose their forum, their substantive applicable law, their applicable procedures and may wish to appoint foreign counsel for the same reasons they appoint foreign arbitrators, and so counsel need not be lawyers or nationals of the country of the seat or place of arbitration. It has been submitted that restricting the parties’ liberty to select their representatives arguably undermines the arbitration process and the party autonomy that is its cornerstone.
Nevertheless, some Arab laws provide for certain restrictions. For example, Article 5(1) of the Lebanese Legal Profession Law No. 7 of 1980 requires that a lawyer shall be a national for at least 10 years. Similarly, the Jordanian Advocacy Law No. 11 of 1972 provides under Article 6 that a lawyer is a person who provides judicial and legal assistance, inter alia, representing a party before arbitrators. Additionally, Article 8 provides that to be registered in the registry of lawyers, a person must be a national for at least 10 years. However, Article 25.b of the Jordanian Arbitration law No. 31 of 2001 allows a Jordanian lawyer representing a party in an arbitration to be assisted by a foreign lawyer if the applicable law to the subject matter of the dispute is a foreign law.
In Egypt, foreign counsel and non-lawyers can appear and represent parties in arbitral proceedings insofar as they do not present themselves as registered lawyers (a role that is normally reserved for Egyptian nationals registered with the Egyptian Bar). Party representation by foreign counsel (or non-lawyers) in proceedings seated in Egypt is now settled and endorsed by the highest courts in Egypt, following the decisions of the Cairo Court of Appeal and the Egyptian Court of Cassation on the validity of appearance of an American lawyer after an arbitral award was issued in an arbitration seated in Cairo.
Specifically in relation to party representation, the Cairo Court of Appeal held that the parties are empowered to appear before arbitral tribunals or appoint others to represent them. The Court noted that representation of a party by a non-lawyer in arbitration through a valid power of attorney would suffice to validate the representation in arbitration proceedings. The Court observed that arbitrators are not bound by all the rules of the Law of Civil and Commercial Procedures but rather by the fundamental principles of procedures such as equality between the parties and due process.
Based on Articles 25 and 39(1) of the Egyptian Arbitration Law No. 27 of 1994, parties are free to choose their procedural rules and substantive norms. Similar provisions are found in other Arab laws.
That said, almost all Arab advocacy laws, consistent with most foreign advocacy laws across the globe, state that, with the exception of pro hac vice permission to foreign lawyers granted on a reciprocity basis with the foreign counsel’s jurisdiction, only national lawyers admitted to the Bar are capable of representing parties in legal proceedings. The issue is always whether this restriction extends to arbitral proceedings or remains confined to judicial proceedings. Subject to the pertinent legislative text and the clarity of including specific references to arbitration or arbitral tribunals as is the case of Article 3 of the Egyptian Legal Profession (Advocacy) Law, which influenced other Arab legislation, subsequent legislation governing arbitration in Arab countries would normally dispense with this restriction, thus allowing foreign counsel and non-lawyers to appear and represent parties. It is this type of lex specialis that should prevail and override any conflicting provisions in legislative texts governing the legal profession at large and the general practice of law.
Advice to sceptical Middle Eastern counsel: embrace the process
At the crossroads of the East and the West, the Middle East has historically been the theatre where civil and common law-trained arbitrators and counsels came together. While a lot of ink can be spilt on the differences in the approaches between arbitration practitioners from these two summa divisio legal traditions, in my experience, I found civil law-trained counsels from the Middle East were often unused to the dynamics of international arbitration. In particular, I found they tended to be perplexed by the collaborative approach of international arbitrators, especially those coming from common law jurisdictions.
Often parties are invited to engage actively in the arbitral process by expressing opinions on certain issues or clarifying a specific defence. I found that this regularly surprised civil lawyers from the Arab regions who were not used to interacting with arbitrators, who are habitually regarded as judges. To this end, it was not customary for such counsels to engage actively in the discussion of the issues at stake, or even seek to clarify the factual matrix of the case as part of their submissions. Based on my experience, doing so has been traditionally perceived by fellow civil-trained counsels as a form of influence as to the direction of the anticipated final award and, therefore, as an attack on the sanctity of the arbitrator’s duties of impartiality and independence.
Such a misplaced belief does not contribute to the spirit of arbitration as a credible, efficient and trustworthy dispute resolution mechanism. As a matter of fact, such an interaction between the arbitrators and the counsels should not be feared, as it does not purport to change the facts or the legal arguments of the case, which ultimately remain untouched by the often-needed clarifications brought to the arbitrators’ attention.
Practitioners in the Middle East are now realising that a collaborative approach cannot only assist the parties to streamline and clarify their arguments but, more importantly, can provide valuable support to the arbitrators in reaching a much more informed and just decision.
Undoubtedly, international arbitration is moving towards more efficiency and transparency. One way this can be achieved is through interaction between the parties, their counsel and the arbitrators to get to the bottom of the facts so as to reach a fair outcome in the best interests of the parties. Arbitrators in the Middle East, who are nowadays increasingly adopting a more collaborative approach, should not have their credibility and impartiality called into question for doing so. The traditional litigation-style approach in arbitral proceedings in the Middle East, where the parties would solely file and rely on their submissions and expect the arbitrators to remain silent until the issuance of the final award, is fortunately shifting towards a more collaborative approach, and this can be perceived through counsel’s approach and demeanour.– Essam Al Tamimi, Al Tamimi & Co
This is undoubtedly of paramount importance for any jurisdiction that seeks to position itself as an arbitration-friendly jurisdiction and align itself with best practices in international arbitration. Positioning international arbitration as a process that enables the creation of an open society of legal practitioners reinforces the benefits of interaction and cross-pollination between diverse legal cultures, where different principles and styles of advocacy are exchanged and experienced, which ultimately facilitates harmonious practices and norms that befit the nature and purpose of delocalised international arbitration.
Contrary to the Egyptian Legal Profession (Advocacy) Law, the equivalent laws of Lebanon, Libya and Syria do not specifically reserve the right of representation of a party before arbitral tribunal to national lawyers. These laws refer to courts with no express reference to arbitration.
However, as is the case with the Egyptian Legal Profession (Advocacy) Law, Article 3(1) of Qatari Legal Profession (Advocacy) Law No. 23 of 2006 (the Qatari Advocacy Law) reserves the right to represent parties before arbitral tribunals to lawyers. Moreover, Article 3(2) of the Qatari Advocacy Law considers that appearing before arbitral tribunals and rendering legal opinions are among the exclusive legal services reserved to lawyers. However, Article 7 vests the Qatari Ministry of Justice with the power to authorise a reputable foreign law office with specialist expertise to provide legal services in Qatar for a renewable period of five years. Also, Article 8 of the Qatari Advocacy Law entitles foreign lawyers who are authorised to practise law in their own countries to ask for authorisation to appear before Qatari courts on the condition that a Qatari lawyer participates with the foreign lawyer in appearing before the court. Moreover, the committee of admission of lawyers, in accordance with its requirements (and under Article 9 of the Qatari Advocacy Law as amended by Law No. 1 of 2018), may authorise non-Qatari lawyers working in Qatari law firms to represent their firms before arbitral tribunals. Both Qatari nationals and nationals of the Gulf Council countries can be admitted to the Qatari Bar on a reciprocity basis pursuant to Article 13(1) of the Qatari Advocacy Law.
Nevertheless, Qatari Arbitration Law No. 2 of 2017 provides in Article (24/6): ‘Either party may appoint a lawyer or more to represent it and may appoint experts and translators to, and the arbitral tribunal may, at any time, request any party to submit proof of the authority granted to its representative in the form required by law or determined by the tribunal.’ The express reference to a party’s right (not obligation) to appoint one or more lawyers implies that a party may choose to be represented by non-lawyers, foreign counsel or by itself with no counsel at all. This means that such lex specialis governing arbitral proceedings, and enacted 11 years after the Qatari Advocacy Law, prevails and overrides the general law governing the legal profession at large.
Similarly, in the United Arab Emirates, Article 4(1) of Federal Law No. 23 of 1991 regulating the Legal Profession (Advocacy) restricts the right to practise law to those admitted to the UAE Bar, and, like in Egypt, being a UAE national is a requirement for admission to the UAE Bar pursuant to Article 6(1) of the UAE Legal Profession (Advocacy) Federal Law.
Exceptionally, a foreign lawyer may practise law in the UAE if certain conditions are met. These conditions are enshrined in Article 6, Paragraphs (2), (3) and (4) of the UAE Legal Profession (Advocacy) Federal Law and they provide that counsel should not be less than 21 years old, enjoying full capacity and good reputation, not being previously sentenced on account of a felony, a misdemeanour related to honour and honesty, having a legal qualification in law or shariah and law from any of the universities in the UAE or other recognised universities. Additionally, the conditions under Article 9, Paragraphs (a), (b) and (c) should also be satisfied, so that counsel previously worked as a lawyer or a member of the judiciary for at least 15 years, has a legitimate residence in the UAE and practices law through an office of a UAE national registered as a practising lawyer.
In implementation of this Federal Law, Ministerial Decree No. 972 of 2017 also stipulated in Article 2 thereof that: ‘courts, arbitral tribunals and judicial and administrative committees may not accept the proxy of a person unless his/her name is registered in the schedule of practicing lawyers’. However, the newest Arab legislation on arbitration, UAE Federal Arbitration Law No. 6 of 2018, seems to have settled the matter, as it adopts a commended approach and captures the right of foreigners and non-lawyers to represent parties in arbitral proceedings. Article 33(5) of the new UAE Arbitration Law unambiguously states: ‘Parties, at their own expense, are entitled to appoint experts and legal representatives, whether lawyers or otherwise, to represent them before the arbitral tribunal, and the arbitral tribunal is entitled to request any party to submit proof of the authority granted to its representative in the form determined by the tribunal.’ This express reference to appointing legal representatives, whether lawyers or otherwise, confirms that a party may choose to be represented by non-lawyers or foreign counsel and so this lex specialis governing arbitral proceedings prevails and overrides (1) the general law governing the legal profession at large and (2) any Ministerial Decree that is secondary legislation as compared to the Federal Law on Arbitration (a primary legislative text).
In any event, if the parties agree to restrict their arbitral proceedings to national counsel at the seat of arbitration, opt for an applicable procedural law or rules that do not allow parties to be represented by non-lawyers or foreign counsel, or opt for ad hoc arbitration in a jurisdiction whose arbitration law does not address the issue of party representation and they fail to agree on foreign counsel (or non-lawyer) representation, the matter would be very problematic and restrictive, since the local legislation governing advocacy and the legal profession would apply if it included specific reference to arbitration. Thus, parties are advised to conduct the necessary due diligence on the applicable norms and practices at the seat of arbitration prior to nominating and agreeing the seat.
The rules of many arbitral institutions permit the appointment of counsel of choice (whether foreign, non-lawyer or otherwise), irrespective of the seat of arbitration. For example, Article 26(4) of the ICC Rules of Arbitration 2017 states that ‘the parties may appear in person or through duly authorised representatives. In addition, they may be assisted by advisers’. Article 18(1) of the LCIA Rules of Arbitration 2014 states that ‘any party may be represented in the arbitration by one or more authorised legal representatives appearing by name before the Arbitral Tribunal’. Article 13.6 of the HKIAC Administered Arbitration Rules 2018 states that ‘the parties may be represented by persons of their choice’. Rule 23.1 of the SIAC Rules 2016 reads ‘any party may be represented by legal practitioners or any other authorised representatives’. Article 13 of the VIAC Rules of Arbitration 2018 states ‘in the proceedings before the arbitral tribunal, the parties may be represented or advised by persons of their choice’. Article 5 of the CRCICA Arbitration Rules 2011 provides that ‘each party may be represented or assisted by one or more persons chosen by it’. Article 7.1 of the DIAC Arbitration Rules 2007 states that ‘the parties may be represented or assisted by persons of their choice, irrespective of, in particular, nationality or professional qualification’ and Article 3 of the ADCCAC Procedural Regulations of Arbitration 2013 states that ‘the parties may at any stage select those who shall act for them, drawn from among lawyers or others’.
It should also be noted that representation of parties in arbitration by lawyers not authorised to practise in the seat is not an unauthorised or uncommon practice of law. In most jurisdictions, courts tend to adopt a liberal interpretation and a more relaxed approach when it comes to party representation in arbitration.
The perceived scepticism towards the participation of foreign counsel or non-lawyers in arbitration throughout Arab jurisdictions is increasingly diminished or even disappearing owing to the enactment of arbitration-specific laws and to the liberal approach adopted by courts, where the traditional protectionist view of the seat is now becoming obsolete and outdated. Absent such liberalisation, the concerned jurisdiction risks being alienated and excluded in an era of competition among jurisdictions aiming to reposition themselves as leading seats or hubs of international arbitration. Insisting on applying restrictive and obsolete national rules on party representation is likely to result in relocating complex arbitrations from the protectionist jurisdiction to one that is arbitration-friendly.
As has been mentioned, counsel in Arab jurisdictions are bound by certain ethical and professional obligations and this is all the more pertinent in the context of international arbitration. There are various ways in which counsel can unnecessarily aggravate a dispute and adversely affect the position of the party he or she represents. These include:
- unnecessarily aggressive attitudes borrowed from everyday court practice, owing to the scarcity of arbitration-specific practitioners in the region. Such attitudes affect timings and costs, may adversely affect a party’s credibility and may require the arbitral tribunal to invest a lot of time and work in examining all aggravating motions and side applications;
- burdening the arbitral tribunal with numerous unwarranted arguments that are mostly irrelevant or unfounded. While counsel may seek to impress the tribunal by its arsenal of arguments, it is not uncommon for counsel also to present irrelevant or off-point arguments and claims, and in doing so risk prolonging time and increasing costs. This includes normative challenges on the authenticity of all documents and evidence submitted by the opposing party, despite the absence of any valid grounds to do so;
- unnecessary filing of voluminous submissions and making excessive document production requests that would equally increase costs and prolong time, leaving the tribunal with the arduous task of dealing with excessively onerous pleadings and fishing expeditions;
- providing unstructured and unorganised pleadings that make the tribunal’s task a daunting one, especially if much of the evidence is not linked to the claims or documents prove to be illegible, incomprehensible or incomplete;
- not cooperating with the arbitral tribunal and regularly breaching the procedural orders issued by the tribunal where such an attitude would yield negative results and may lead to adverse cost orders;
- challenging established facts and basic notions and legal norms that are unequivocal. This may discredit counsel and unnecessarily increase time and costs;
- seeking to avoid addressing the core issues in dispute and engaging guerrilla, obstructive and dilatory tactics to manipulate, delay or derail the proceedings;
- constantly invoking breach of due process on every occasion irrespective of the existence of valid grounds to do so, in the hope of laying the foundation for nullity should an award be rendered in favour of the adverse party; and
- demonstrating a profound lack of appreciation of the basic principles of international arbitration whereby counsel would question and challenge basic procedural principles regarding the right of representation, equal treatment of parties, right to submit witness statements and cross-examine witnesses, the need to quantify a party’s claims and adducing evidence in support of claims or defences.
In international arbitrations seated in the Arab world or involving Arab parties or counsel, it is not anomalous for counsel to employ one or more of the above dispute-aggravating attitudes or demonstrate a lack of appreciation for arbitration-specific procedures. This is primarily due to lack of specialisation and possible overlap between arbitration and litigation, where counsel’s approach to arbitration is profoundly affected by long-standing intricacies and perceptions of traditional litigation in local courts.
Guerrilla tactics are not alien to Arab arbitrations, and present a threat to the efficient and proper conduct of arbitration proceedings. They put the arbitrators in a predicament not only because the behaviour is difficult to detect but because it is even more difficult to combat. However, these tactics may not disrupt arbitration proceedings, if they are, upon identification, dealt with properly and effectively and without fear of challenge or threat to the final award. Accordingly, if courts and arbitral institutions offer the support needed to tackle these tactics they will not constitute a problem.
Guerrilla tactics can take many forms, ranging from mild to extreme, and include the following.
Bribery occurs when a party offers, promises or grants an undue advantage to an arbitrator or a third person to influence the arbitral proceeding. Obviously, all Arab laws outlaw bribery in all forms and so this tactic is tantamount to criminal conduct sanctioned by law.
Intimidation and harassment of arbitrators and witnesses
This behaviour would be used so that arbitrators, experts or witnesses would be reluctant to be part of the arbitral proceedings. This has a significant negative effect on the proper and efficient conduct of arbitration proceedings and there are extreme examples from Arab jurisdictions, in which arbitrators, witnesses and experts have been improperly sued and subjected to unwarranted criminal complaints as a scare tactic by counsel to derail arbitration proceedings.
One notable example concerns the situation regarding arbitrators, translators and experts under the UAE Penal Code, which has raised numerous global concerns as to the potential abuse of some of its provisions by parties and counsel exposing arbitrators, experts and translators to potential criminal sanctions. First, the amendments to Article 257 in 2016 and 2018 put certain categories of participants in arbitral proceedings in a precarious situation in the event of tactical abuse by parties or counsel. In 2016, Article 257 was amended to read as follows:
Any person who, while acting in the capacity of an arbitrator, expert, translator or investigator appointed by an administrative or judicial authority or elected by the parties, issues a decision, gives an opinion, presents a report or a case or establishes a fact in favour or against a person, contrary to the duty of neutrality and integrity, shall be punished by temporary imprisonment. The above individuals shall be prohibited from undertaking the assignments commissioned to them again.
However, in 2018, this provision was further amended by Law No. 24 of 2018, which excluded arbitrators but kept the 2016 amendment in effect for experts, translators and investigators. In light of the 2018 amendment, Article 257 now reads:
Any expert, translator, or investigator appointed by a judicial authority in a civil or criminal lawsuit, or an administrative authority who knowingly asserts a matter which is contrary to the truth or gives it an untrue meaning, shall be sentenced to detention for a minimum term of one year and a maximum period of five years. If the assignment of the mentioned groups is related to a felony, the sentence shall be temporary imprisonment. And the mentioned groups shall be prohibited to exercise the missions assigned to them, and the provisions of Article 255 shall apply to them.
Note that since Article 257 was amended in 2016, no criminal complaint has been successfully processed by the UAE authorities against any arbitrator on the basis of that provision. This was a commended approach by the UAE authorities, pending the 2018 amendment of the said provision, which eased the global concerns voiced against arbitrations seated in the UAE, noting that the UAE has successfully positioned itself as a hub for international arbitration in the Arab world.
Nevertheless, arbitrators will remain cautious because Articles 234 and 237 of the UAE Penal Code naturally penalise the act of bribery by punishing the public servant who seeks or accepts a privilege, and the person who offers a privilege to a public servant. Article 236 provides that arbitrators, experts and investigators are treated as public servants for the specific purposes of bribery.
A second notable example is what one might call ‘engineered challenges’ against arbitrators, whereby abusive parties and counsel may unwarrantedly sue arbitrators in court to artificially create a basis for arguing that the arbitrator is an opponent in a lawsuit and so must be removed from the case. While the practice of unwarrantedly suing arbitrators does exist in the Arab world, albeit on a limited scale, and even though courts have normally dismissed unwarranted challenges and suits, there is still no test case as to whether such ‘engineered challenges’ will present a risk. However, it is hoped that courts will not support guerrilla tactics and will not treat any such engineered challenges as grounds for removal of impartial and independent arbitrators from cases. It is also hoped that courts in the Arab world will hold such abusive parties and counsel accountable for all legal costs and damages resulting from any such abusive tactics.
Derailing the proceedings by seeking orders for termination or filing criminal complaints
This could happen under some Arab laws that provide for the possibility that (1) counsel may apply ex parte to the competent judge to terminate pending arbitral proceedings on account of exceeding the time limits under the lex loci arbitri, or (2) counsel may file a criminal action that may lead to suspension of the arbitral proceedings. These options may inappropriately and abusively be exploited by parties and it is incumbent on courts and tribunals to ascertain whether a party is employing guerrilla tactics to derail proceedings. If so, measures must be taken by courts, tribunals and institutions to thwart such attempts.
In specific reference to the issue of criminal proceedings, Article 46 of the Egyptian Arbitration Law No. 27 of 1994 and Article 43 of the Jordanian Arbitration Law No. 31 of 2001 (as amended by Law No. 16 of 2018), provide that if criminal proceedings are commenced regarding an alleged forgery or any other criminal act, the arbitral tribunal may decide to either proceed with the arbitration or suspend same pending a final judgment on the merits of the criminal act. The very fact that both provisions offer an arbitral tribunal the needed discretion serves as a safeguard against any guerrilla tactic or abusive conduct by a party that may seek to derail the proceedings on account of an alleged criminal act. However, other Arab laws have provided for an automatic suspension in the event of alleged forgery or other criminal act, which opens the door for abusive tactics. This is specifically the case of Article 209(2) of UAE Civil and Commercial Procedures Law No. 11 of 1992, which is now revoked by virtue of UAE Federal Arbitral Law No. 6 of 2018, of which Article 43 provides for the same discretionary power afforded to arbitral tribunals under the Egyptian and Jordanian laws.
Hacking, wiretapping and other surveillance methods
These methods are increasingly posing serious risks to the integrity of arbitral proceedings, with certain parties or counsel, acting unethically, using such methods to attempt to gain an illicit tactical advantage over their counterparts. In all Arab jurisdictions, such illicit activities may constitute criminal activities, but the issue is always whether information or documents obtained illicitly could be produced and relied upon in proceedings. While views may differ in this respect, it remains doubtful that parties and counsel who engage in such illicit activities can be permitted to benefit from their own wrongdoing, and courts and tribunals should take a firm stance to disallow any reliance on information or documents obtained illicitly, or produced in clear breach of confidentiality requirements or as a result of hacking or surveillance.
This includes the deliberate manufacture of false statements, intentional destruction and concealment of evidence and production of forged documents, all of which are a clear breach of counsel’s professional and ethical duties. Given the absence of a general duty of disclosure of evidence and discovery, certain counsel in Arab arbitrations may not consider the concealment or destruction of evidence as illicit conduct, which raises serious concerns regarding the applicable legal standards pertinent to the production of evidence and non-concealment of material facts. However, the production or submission of unauthentic or forged documents remains unacceptable behaviour in breach of the basic principles of ethics and professional obligations. Also, if counsel knowingly engages in the submission of forged documents, this would be tantamount to a criminal act that is sanctioned under all Arab laws.
Other dilatory tactics
These range from refusal to proceed with the arbitration proceedings notwithstanding a clear contractual obligation to do so, to repeated challenges against arbitrators, to intentional delay of submissions, last-minute postponement of filings, hearings, submission of an excessive number of documents, ignoring orders of arbitral tribunals, filing frivolous procedural requests or requesting unwarranted post-hearing submissions with the sole aim of derailing and delaying arbitration.
Arab arbitrations or proceedings involving Arab parties or counsel are not immune to any of the above-mentioned guerrilla tactics and it is not uncommon to witness them in one or more forms. The onus is on institutions, tribunals and courts to combat these tactics, which can be done in three phases.
The first phase (prior to the arbitration proceedings) takes place through (1) proper drafting of the arbitration agreement, (2) proper choice of counsel and arbitrators, and (3) choosing institutional arbitration over ad hoc proceedings, with due consideration to international institutions that provide adequate tools and rules that safeguard the integrity of the proceedings and combat counsel misconduct.
The second phase (throughout the arbitration proceedings) is through:
- observing and referencing the applicable ethical code of conduct in the first procedural order;
- providing a strict and detailed procedural timetable;
- disambiguating counsel obligations and agreeing a workable style of advocacy;
- detailing the appearance of witnesses and experts;
- outlining the principles governing production and admissibility of evidence;
- setting out the principles of good faith cooperation between counsel and the arbitral tribunal;
- seeking interim relief from arbitral tribunals or national courts to preserve evidence or thwart devious tactics if the conditions for interim relief are satisfied;
- seeking orders reprimanding counsel and notifying bar associations of counsel misconduct; and
- seeking damages and cost awards sanctioning misconduct by the party and its counsel.
The third phase (post-award proceedings), is through (1) challenging awards procured by guerrilla tactics and (2) careful and supportive court review by protecting arbitrators and safeguarding awards when abusive counsel seeks to engage guerrilla tactics to vacate awards under the guise of alleged breach of due process and public policy, especially since the Arab world suffers from a preoccupation with due process and public policy paranoia.
The Arab world is primarily composed of civil law jurisdictions, with influence from Islamic law traditions. Accordingly, Arab counsel and the style of advocacy are overwhelmingly influenced by civil law traditions founded on the basic principles of (1) good faith, (2) the claimant bearing the burden of proving its case, (3) the absence of discovery with limited options for requests of production of documents, (4) primary reliance on documentary evidence and secondary reliance on witness testimony, with scepticism towards witnesses, party-appointed experts and cross-examination techniques, and (5) iura novit arbiter/curia, provided that the arbitral tribunal does not exceed the parties’ claims or decide on matters not claimed by the parties.
It is quite uncommon for Arab counsel to exclusively specialise in and prosecute arbitral proceedings. Thus, litigation, corporate and general counsel may take on board mandates to prosecute arbitral proceedings, which undoubtedly affect time, costs and tactics, where certain Arab counsel may attempt to challenge basic principles of international arbitration and question established practices. This is a fundamental feature of Arab arbitrations, which is currently changing owing to the rise of a new generation of arbitration-specific practitioners who are well versed in the art, principles and practices of international arbitration.
Contrary to certain common law systems, where parties and counsel are required to collaborate in pretrial discovery of documents and where the obligation to disclose is expansive and covers documents that are supportive of or adverse to the party’s claims, Arab civil law systems do not allow pretrial discovery and parties are generally required only to produce documents on which they intend to rely to prove their case. However, sometimes documents may be requested by an opposing party, but this would be very limited and not a form of ‘fishing expedition’. That said, absent an agreement on the scope of document disclosure, the arbitral tribunal would be called upon to determine the scope of production in accordance with the applicable legal norms whether under the lex loci arbitri or the lex causae, depending on whether the pertinent jurisdiction characterises document disclosure as a matter of procedure or substance. Also, the failure of a party to comply with the production order issued by the tribunal may expose that party to the risk of drawing negative inferences.However, in practice, negative inferences are not yet commonly relied upon by arbitral tribunals involved in Arab arbitrations or seated in Arab jurisdictions.
These practical specificities of Arab arbitrations are motivated by the cultural nuances prevailing in the Arab world. This is not uncommon, since arbitral tribunals ought to be open to cultural specificities and implications insofar as such cultural specificities affect the arbitral process and its applicable norms.
Further, contrary to common law systems and common law-trained practitioners, Arab civil law practitioners are generally not well trained in the art of cross-examination of witnesses and experts, even though cross-examination could be a very useful tool to test the evidence on record and extract the truth, or at least the plausible truth, from oral testimony. Thus, cross-examination in the Arab world may not always be as efficient or productive, which affects the advocacy style in which significant reliance is on written pleadings and documentary evidence, although oral pleadings and witness testimony could be very useful tools in the arsenal of a qualified counsel depending on the factual and legal circumstances of the case.
By and large, this specific Arab culture affects advocacy in Arab-related arbitrations and arbitral tribunals should be culturally aware that the norms, practices, methods and skills of Arab advocacy are distinguished from their Western counterparts. This may, unfortunately, create a disequilibrium and incompatibility within the same proceeding and arbitral tribunals would then be required to set certain overarching principles of procedure and advocacy to restore the needed procedural balance to manage the proceedings properly and efficiently in due consideration of any legal and cultural specificities.
Evidence and law
As has been mentioned, documentary evidence, to the extent available, defines Arab counsel’s approach and strategy to arbitral proceedings, and the prevailing principle is that each party bears the burden of proving its case, claims and defences. Requests for production of documents are exceptional and subject to legislative constraints that are normally enshrined in Arab codes of evidence. While there are similarities between Arab countries owing to their common language, religion and regional and socio-cultural identity, differences can be observed in their legal and cultural traditions and practices.
On the specific issue of evidence, the Egyptian Code of Civil and Commercial Procedures (Law No. 13 of 1968) and the Egyptian Code of Evidence (Law No. 25 of 1968) contain detailed rules on procedures for document production and the value of documentary evidence. Specifically, Articles 20 to 27 of the Egyptian Code of Evidence lay down in detail the framework and conditions for ordering document production. According to Law No. 25 of 1968, under Article 20, a party may exceptionally request a court or tribunal to compel the other party to submit a relevant document in a limited number of cases (1) if the law permits the production of such document, (2) if it is a joint document, drawn up in the interests of both parties or records their reciprocal rights and obligations, or (3) if the opposite party has invoked, cited or relied on the document at any stage of the proceeding.
However, documentary evidence is not the only form of evidence recognised under Arab laws and according to which counsel advocacy is defined and confined. Witness testimony, expert opinions, site inspections and oath are some of the other forms of admissible evidence, depending on the circumstances of each case. Nevertheless, as has been stated, the practice of Arab advocacy in arbitration is primarily premised on written submissions and documentary evidence. However, this culture of written advocacy would be more effective if counsel avoid:
- inundating the arbitral tribunal with unnecessarily voluminous written submission, sometimes labelled the ‘Anglo-Americanisation’ of arbitration proceedings; and
- immersing arbitral tribunals in the disordered production of documents that are not accompanied by specific references and guidance.
Counsel should ensure that claims and arguments are clear, precise and supported by factual evidence and legal authorities, noting that no legally binding system of precedents or stare decisis exists under Arab laws.
Briefly, on the specific issue of the application of the governing law, Arab jurisdictions and Arab advocacy usually give due weight to applicable law issues and expect tribunals to uphold and apply the law, to the extent that some jurisdictions consider the exclusion (but not simply wrongful application) of the applicable law by the tribunal as a separate and express ground to set aside and vacate the arbitral award. This is specifically the case under Article 53 of Egyptian Arbitration Law No. 27 of 1994, Article 53 of Omani Arbitration Law No. 47 of 1997 and Article 53 of UAE Federal Arbitration Law No. 6 of 2018.
In this respect, Arab counsel expect arbitral tribunals to correctly apply the law on the basis of the doctrine of iura novit curia, which militates against being strictly bound by the parties’ statements concerning the law. However, it is necessary to avoid surprising the parties with an outcome that they had not contemplated prior to the award. It is on this basis that courts in the Arab world have afforded arbitral tribunals broad powers to ascertain and apply the law.
That said, the Egyptian Court of Cassation has also held that tribunals have the right to re-characterise the contract,and to determine the proper branch of law governing the dispute. Furthermore, arbitral tribunals seated in Cairo have held that they retain the authority to determine the legal nature of the contract and to provide the correct legal characterisation thereof.
While the foregoing demonstrates the liberal approach adopted in certain Arab jurisdictions in affording arbitral tribunals a broad authority under the governing law, this does not entitle an arbitral tribunal to (1) exclude or manifestly distort the application of the lex causae, (2) exceed the parties’ claims and defences, (3) exceed the claimed quantum, (4) make arguments or claims on behalf of a party, or (5) decide on facts or matters not raised or argued by the parties.
Thus, it is submitted that certain defining principles can help to disambiguate the rights and obligations of the arbitral tribunal with respect to the applicable law. These guiding principles include the following:
- The arbitrators are not bound but retain the discretion to raise, sua sponte, legal issues not raised by the parties, insofar as such issues are pertinent to the dispute and the decision-making process.
- In raising novel legal issues sua sponte, arbitrators have to be very cautious so as not to exceed their mandate, raise irrelevant issues or transform the nature of the dispute.
- The following legal issues should either be avoided or promptly communicated to the parties for their review and analysis prior to rendering an award on the basis thereon:
- any legal issue that exceeds the parties’ respective claims, arguments or relief sought;
- any legal issue that affects the parties’ legal characterisations of contract, act or event; and
- any legal issue of a public policy or overriding mandatory nature.
Legal texts, precedents, authorities and other sources additional to those submitted by the parties, which are referenced by the arbitrators for the purpose of fortifying their reasoning in an award, do not require the parties’ prior review and analysis since they are simply additional sources that will not change or affect the outcome of the award and do not go beyond the parties claims and defences.
Accordingly, arbitral tribunals sitting in an Arab jurisdiction or applying Arab laws and before whom Arab counsel is appearing need to familiarise themselves with the procedural and cultural specificities of dealing with applicable law issues. Such arbitral tribunals are encouraged to raise those issues and discuss the procedural treatment of the applicable law with counsel early on in the case.
Advocacy as an art of pleading and persuasion has spawned its own techniques and features in the context of arbitral proceedings. One of the distinguishing features of advocacy in arbitration is that it offers a myriad of opportunities to showcase the diverse cultural approaches to advocacy and the specificities of advocacy techniques in different legal systems.
In Arab legal tradition and jurisdictions, advocacy plays a central role and this chapter is a modest attempt to shed light on certain specificities of Arab advocacy and how it has shaped Arab counsel’s approach to international arbitral proceedings. It also aims to afford Arab counsel, foreign counsel and arbitrators an opportunity to consider, reflect and assess the intricacies and culture of pleading cases involving Arab parties or counsel.
It is true that the arbitration system favours procedural flexibility and a mixed system of common and civil law traditions is created to achieve a variable degree of harmonisation. Specifically, in relation to advocacy in international arbitration, counsel across the globe have conceded and contributed to the creation of a ‘third culture’ of advocacy that is affected by diverse national traditions, yet is distinct from these.
As is evident from this chapter, the overarching principles of Arab advocacy are not alien to those principles prevailing in the most prominent Western jurisdictions, but it is the actual practices that count. It is in this respect that Arab legal practitioners need to do a lot more to counter the negative practices that have tarred the noble, proper and correct practices that ought to prevail in arbitration. Arab national bar councils and the Arab legal profession as a whole must pool their efforts to push for updating the outdated statutory instruments and move towards setting distinctive common standards that apply to international arbitration and distinguish those from the standards and practices that govern local litigation. The traditional wrongful perception by some Arab counsel, alien to international arbitration but versed in local court litigation, that guerrilla tactics and disruptive procedural strategies are the mark of talent must change, and it is both hoped and expected that the rise of a new generation of specialised international arbitration practitioners will positively contribute to aligning Arab arbitrations with best practices prevailing across the globe.
Arab counsel are not devoid of talent and can indeed contribute positively and forcefully to the edifice of international arbitration advocacy. Given that international arbitration has spawned its own culture and distinctive practices, it is high time for Arab advocacy to contribute to the shaping of the new global ethical and professional standards of advocacy. The nature of arbitration itself as a mechanism for resolving disputes of a complex nature with multiple parties of different nationalities and different backgrounds necessitates that all players in the field, notably counsel, equip themselves with the knowledge, skills, techniques and tools necessary to efficiently and properly conduct international arbitral proceedings.
Given the long-standing existence of advocacy as a profession in the Arab world, the legal profession has created its own culturally oriented practices and specificities that have brought about certain challenges and prospects, which define the practice of advocacy in the region and so affect the manner in which arbitral proceedings are conducted in Arab jurisdictions. While this chapter does not aim not to provide a complete account of the practice of advocacy in Arab jurisdictions, it specifically purports to offer a high-level overview of certain specificities of advocacy in international arbitrations hosted in Arab jurisdictions or involving Arab counsel. Among those specificities are (1) party representation and the ability of foreign counsel to represent parties in Arab-related arbitrations; (2) counsel ethics; (3) guerrilla tactics that pose a threat to the efficient and proper conduct of the arbitration proceedings; (4) cultural aspects and practices that affect Arab-related arbitrations; and (5) issues of evidence and law. The chapter also sheds light on the various ways in which Arab counsel can unnecessarily aggravate the dispute and adversely affect the position of the party it represents before arbitral tribunals.
With the progressive development of a fine international arbitration market in the Arab world and the rise of a talented generation of specialised Arab international arbitration practitioners, it is hoped that unacceptable and obsolete practices will be swept away and the deep-rooted traditions of smart, ethical and professional advocacy revived and showcased.
Capitalising on the success of the International Bar Association (IBA) texts, there may be a brighter future for the implementation of the IBA Guidelines on Party Representation in International Arbitration, adopted by the IBA Council on 25 May 2013, in Arab-related arbitrations featuring Arab counsel. These Guidelines offer global standards on counsel conduct in international arbitration and could be a useful set of non-binding guidelines that do not restrict the appointment of counsel (party representatives) to persons with specific legal qualifications or affiliation to any domestic bar. They have not yet gained the recognition they deserve in the Arab world, but it is expected that this could change in the near future.
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