From shake-ups in
2021 saw a seismic shake-up of the arbitration landscape in
Nearly a year has now passed since the Decree was passed. In this article, we assess how
After 15 years, the DIAC Arbitration Rules were updated in 2022, bringing them in line with international standards. Further evidence of
"The DIAC Arbitration Rules 2022 have been well-received, particularly by parties who had provided for DIFC-LCIA Arbitration in their contracts and who may otherwise have felt obliged to apply out-dated arbitration rules they did not consent to."
Dubai Arbitration Week - Post-Covid rebirth
As part of
"Dubai Arbitration Week 2022 was a tremendous success - it was refreshing to see so many lawyers, arbitrators, experts and funders attend in person, reflecting
UNEXPECTED DECISIONS FROM THE
The past year has also seen some surprising decisions from the
CLARIFICATIONS FROM THE DIFC COURTS
In a recent blog post (which can be read here), we commented on the decision of the DIFC Courts in Ledger v Leeor [2022] DIFC ARB-016, which found that the power of the DIFC Courts to grant anti-suit injunctions is not a given where the seat of the arbitration is in contention. Rather, the DIFC Courts will only do so where there is a "high degree of probability" that there was an agreement that disputes would be determined by arbitration seated in the DIFC or, otherwise, it was an "exceptional case" such that the DIFC Courts could do so. The key takeaway is that clearly agreeing the seat of arbitration is the DIFC is essential, if parties want the option to apply for anti-suit injunctions before the DIFC Courts.
"2022 has seen
The English Courts comment on enforcement of English judgments in the
In the recent application for a security for costs order in
- the
UAE Ministry of Justice had issued a letter to Director General of theDubai Court, recognising reciprocity with the English courts; -
enforcement proceedings were territorial and therefore it was inherently improbable the
UAE Court would assume jurisdiction of the proceedings; and -
there was no reason to suggest the
UAE Courts would decline to enforce an English Court judgment due to awarding legal costs being contrary to public policy.
Notably, the judgment follows the enforcement of a
Vying for position - The growth of MENA arbitral institutions
While the
The Saudi Centre for Commercial Arbitration (SCCA): The SCCA has been a significant challenger in the region for some time. While its 2022 caseload statistics are not yet available, 2021 saw a 587% year-over-year increase in its number of cases. The SCCA has also recently upped the pressure with two new announcements:-
In
November 2022 , the SCCA announced the opening of an office in the DIFC, its first branch outside ofSaudi Arabia . The intention is for SCCA Dubai to provide a comprehensive suite of alternative dispute resolution services, including arbitration facilities. The SCCA Arbitration Rules do not specify a default seat of arbitration, so it will be possible for parties to agree that the seat of the arbitration will be the DIFC (and therefore that the DIFC Courts will have supervisory jurisdiction). Meanwhile, the SCCA Arbitration Rules will be applied and its infrastructure utilised - givingDIAC some healthy competition on its doorstep. -
In
November 2022 , the SCCA announced the establishment of an independent SCCA court (akin to the courts of other arbitral bodies) to determine technical and administrative issues related to SCCA-administered cases. Fifteen internationally renowned arbitration practitioners, from 13 different countries, will sit on the SCCA Court. The role of the Court (which will replace the currentSCCA Committee for Administrative Decisions ) will include reviewing emergency applications, determining jurisdictional objections and deciding arbitrator challenges.
-
In
- The Oman Commercial Arbitration Centre (OAC): Having introduced new arbitration rules at the beginning of 2021, in
July 2022 , the OAC and theChartered Institute of Arbitrators signed a Memorandum of Understanding to work together to enhance the Sultanate ofOman's reputation as an effective dispute resolution centre. With a focus on increasing understanding of the procedure and benefits of arbitration through theChartered Institute of Arbitrators providing a training programme inOman , the hope is that the alliance will benefit those doing business inOman and the wider MENA region. Meanwhile, the OAC continued to grow its profile and caseload in 2022, having introduced new arbitration rules in 2021 and with ongoing initiatives underway to launch new codes of ethics for experts, mediators and arbitrators. - The Bahrain Chamber of Dispute Resolution (BCDR): The BCDR recently launched the 2022 BCDR Rules of Arbitration which will apply to any arbitration commenced with BCDR on or after
1 October 2022 . In addition to a number of changes aimed at enhancing the efficiency of arbitration proceedings, there are two new key provisions under the 2022 Rules. Firstly, there is a requirement for parties to disclose the existence of any third-party funding agreement entered into at any time before or during the arbitration, and the identity of the third-party funder. The intention is it will enable arbitrators to assess whether any third-party funding arrangements result in conflicts of interest, and the impact (if any) on the costs of the arbitration. Secondly, while it was understood tribunals previously had the authority to order security for costs, the 2022 Rules now grant tribunals the express power to do so.
"Until an arbitration centre is created under the OIC Agreement, the Agreement has been found to provide for ad hoc arbitration, with the option to attempt investor-state conciliation. Given the geographical reach of the OIC Agreement, and the broad protections it offers investors, it can be a valuable instrument to add to the arsenal of investors in countries across
AMAL BOUCHENAKI, PARTNER,
THE ORGANISATION OF ISLAMIC COOPERATION - AN INCREASING FOCUS FOR INVESTOR-STATE ARBITRATION IN THE MENA REGION
What is the
The OIC Agreement
The Agreement for the Protection, Promotion and Guarantee of Investments among member states of the OIC was signed in
Article 17-1 of the OIC Agreement provides that "until an organ for the settlement of disputes arising under the Agreement is established, disputes that may arise shall be entitled through conciliation or arbitration". The OIC Agreement then provides detailed procedures for the settlement of claims via conciliation and arbitration.
The OIC Agreement makes clear that the decisions of the tribunal are final and binding, with the force of judicial decisions. Importantly, the contracting parties are obliged to implement the decisions of the tribunal in their territory as if they were a final and enforcement decision of its national courts, irrespective of whether it is a party to the dispute or the investor against whom the decision was passed is one of its nationals or residents.
Arbitrations brought under the OIC Agreement
To date, UNCTAD has reported 19 arbitrations under the OIC Investment Agreement. Importantly, 14 of these remain pending as of
Why is the OIC Agreement important?
Some OIC member states, such as
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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