Regional Dispute ResolutionOptions and observations from the front line

Contents 22

3 Introduction

4

5 - 6 Survey results

Commentary

7

8

Key talking points and Agenda

10

11

12

13

14

15

Speaker and Moderator biographies

- Rajaee Rouhani

- Dean Stelfox

- Edward Sunna

- Ravinder Bhullar

- Philip Punwar

- Jonathan Sutcliffe

Laurence Simons, Baker Botts

- Julian Hicks

- Disclaimer

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Introduction 3

Baker Botts LLP and Laurence Simons conducted a survey regarding ‘Regional Dispute Resolution – Options and Observations from the front line’. This report provides an overview of lawyers’ experiences with disputes and arbitration in the Middle East and a synopsis of the survey findings.

4CommentaryOver the last decade, the dispute resolution landscape in the Middle East region has developed significantly.

Perhaps the most noteworthy innovation is the establishment of new legal jurisdictions and English language, common law courts, namely the Dubai International Financial Centre (DIFC), the DIFC Courts, and the Qatar International Court in the Qatar Financial Centre. The bench of these courts is staffed by prominent judges both based locally and from around the common law world. They offer many of the features that were previously found only in international arbitration proceedings in this region, but with the potential advantages of lower cost and greater power and authority. In 2011, the jurisdiction of the DIFC Courts was unexpectedly expanded. Through the new “opt-in” framework, it is now possible for parties from anywhere to submit their disputes to the DIFC Courts.

Despite these developments, there remains wide support for international arbitration in the region. While this support varies from one industry to another, the neutrality and flexibility that arbitration offers appear to be its principal attractions. There is, furthermore, a perception that the prospects of enforcing arbitral awards are better regionally than they are for judgments of the English language courts. However, ageing arbitration laws across the region mean that arbitration proceedings and awards remain vulnerable to legal challenge, with the risk of increased or wasted costs, delay, and even worse, unenforceability. In contrast, the DIFC has enacted a modern arbitration law based on the UNCITRAL Model Law and the English Arbitration Act 1996. Parties and practitioners often fail to appreciate that DIFC law imposes no restrictions on who can choose the DIFC as their seat of arbitration.

The factors that ultimately influence the choice of dispute resolution method vary greatly. Much depends on the identity of the parties, their respective bargaining power and the nature of the transaction or project concerned. The panel will explore these factors, and share their own experiences and opinions during the panel discussion.

4 5Survey resultsIn how many dispute proceedings (court or arbitration) in the region have you been involved over the last five years?

To the extent that you have been involved in disputes in the region, what form did these take?*

*Respondents could tick all that were appropriate.

In general, where you are able to insist on the form of dispute resolution in agreements, which is your preferred choice?

Please state the primary reason for your answer to the previous question

Dubai Law No. 16 of 2011 has made it possible for parties with no connection to the DIFC to agree to submit their disputes to the jurisdiction of the DIFC Courts. To the extent that this law has enabled your organisation to access the DIFC Courts, have you agreed (whether in a dispute resolution clause in an agreement or after a dispute has arisen) to submit any disputes to the DIFC Courts?

12%0

23%1 - 3

23%4 - 6

7%7 - 9 10 or more

35% Local courts

74%

Common lawcourts (DIFC or QIC)

52%

Arbitration

26%

Arbitration

52%

DIFC Courts

20%

Local courts

12%

Other

16%

Quality of judgement / award

64%

Enforceability of judgements / awards

20%

Speed

8%

Cost

8%

Yes 56%

No 44%

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Have you ever chosen the DIFC as a seat (legal place) of arbitration in your arbitration clauses

In selecting an arbitrator, the most important factor for you is usually:

Have you tried to enforce a DIFC Courts judgment or DIFC arbitral award elsewhere in the UAE?

With regard to arbitration in this region, which is more important to you: having the choice of arbitral rules or the choice of seat (legal place) of the arbitration?

Have you ever agreed to submit small value, or less complex, disputes to the Small Claims Tribunal of the DIFC Courts?

No46%

Yes54%

Experience in the subject matter of the dispute

77%

Experience in the law governing the dispute

23%

Physical location of the arbitrator in the country of the seat of arbitration

0%

Nationality of the arbitrator

0%

Age of the arbitrator

0%

No 96%

Yes 4%

Arbitration rules 38%

Seat (legal place) of the arbitration

62%

Yes 8%

No 92%

6 7Key talking pointsThe gateways to jurisdiction: A simple matter of agreement?Added value or added cost: Small claims; interim relief; summary disposal and appeals?The DIFC experience: Slow and steady?The extra-territorial enforcement of orders and judgments: long arm or tall order?

The good, the bad and the ugly: Why the Arbitration Rules matter.Good Law / Bad Law: What difference does the arbitration law of the seat/placeof arbitration really make? The DIFC experience: a model seat?Selecting your tribunal: The how and the where.

Only good on paper or truly good?Cheap at half the price: Is dispute resolution in the UAE value for money?Go forth? The pros and cons of selecting the dispute resolution venue in the “traditional” centres in the US and Europe.

Common law courts in the region: Dubai, Doha, Abu Dhabi?

Institutional arbitration and arbitration institutions: what really matters?

The Proof of the Pudding is in the eating

Dispute Resolution: Options and observations from the front line

Panel

ModeratorMr. Jonathan SutcliffePartner, Baker Botts

Agenda5:00pm - Registration5:30pm - Seminar: Panel discussion and survey results6:30pm - Drinks reception, The Vault Bar

Mr. Edward SunnaChief Legal Counsel, Meraas HoldingMr. Ravinder BhullarSpecial Counsel, Baker BottsMr. Philip PunwarPartner, Baker Botts

Mr. Julian HicksGeneral Counsel, Dragon OilMr. Rajaee RouhaniAssociate General Counsel, HSBCMr. Dean StelfoxSenior Legal Advisor, Dubai World Central

88Speaker and Moderator biographies

Julian HicksGeneral Counsel, Dragon Oil

Julian trained as a solicitor with a leading London law firm. Following several years in private practice Julian joined one of his Oil and Gas clients (Amerada Hess Limited) as an in-house counsel with a wide range of UK and international responsibilities. In 2001, Julian joined Shell International and was rapidly made responsible for Shell’s legal issues in Russia and the CIS, firstly as Head of Legal but then being appointed as Regional General Counsel. In 2007, Julian transferred from Moscow to Dubai to become Associate General Counsel for Shell’s upstream business in the Middle East and North Africa. In these roles Julian was responsible for the creation and management of multi-cultural legal teams dealing with all aspects of Shell’s operated and non-operated interests in the respective regions during periods of rapid change.

In 2013, Julian became General Counsel and Corporate Secretary for Dragon Oil plc. Julian’s current role includes overseeing all legal, contractual and corporate aspects of Dragon Oil’s business and ensuring that appropriate corporate governance and risk management measures are adopted to ensure the efficient operation of the Dragon Oil group. He works closely with the Board of Directors.

Julian is a member of the Law Society of England & Wales and the Association of International Petroleum Negotiators.

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Rajaee Rouhani is an Associate General Counsel at HSBC Bank Middle East. He heads up the litigation, dispute management and investigations team covering MENA. In addition, a significant part of Rajaee’s remit is to identify, control and monitor significant legal risks that may impact the Bank.

Rajaee worked with two international law firms for 10 years (four years in Australia and six years in the UAE) before joining HSBC in 2012. Rajaee is qualified in England & Wales, Western Australia and has rights of audience before the DIFC Courts.

Rajaee has broad litigation experience. During his time in private practice he acted for clients in respect of cross border disputes, regulatory and internal investigations, international arbitration and fraud/white collar crime. He has experience in handling litigation in England, France, North America, Middle East, Asia, Australia and North Africa. Rajaee has sat as an arbitrator appointed by the ICC and DIAC.

Rajaee RouhaniAssociate General Counsel, HSBC

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Dean StelfoxSenior Legal Advisor, Dubai World Central

Dean Stelfox is the Senior Legal Advisor at Dubai Aviation City Corporation (DACC). Dean is responsible for overseeing all legal aspects related to commerce, operations and sales at Dubai World Central (DWC). A multi-phased urban infrastructure development covering 140 square kilometers, DWC is an aerotropolis designed to meet the present and future needs of aviation, commercial, exhibition and logistics businesses. At the heart of the development lies the Al Maktoum International Airport which, once complete, will have the capacity to handle up to 12 million tonnes of cargo and 120 million passengers annually. Furthermore, seven integrated districts designed for logistics, residential, humanitarian, commercial, exhibition, leisure and aviation requirements will position DWC as a self-contained economic platform and center of commerce.

Before joining DACC in 2008, Mr. Stelfox held the position of Legal Counsel to the Emirates National Oil Company Limited (ENOC) LLC, a Dubai-based oil company engaged in crude production, LPG processing and other petroleum products & services.

He joined ENOC from Kemp Little LLP in London where he served in the position of Solicitor.

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Responsible for all legal functions of Meraas, Edward Sunna was instrumental in the setup of the complete legal infrastructure and function, and most of the Meraas legal entities ensuring license requirement and licensing compliance, trade license renewal, arranging financing for projects and capital raisings for acquisition funding.

Edward developed his legal expertise in Australia in the construction and real estate sectors. His expertise in areas of law cover construction, Engineering, Utilities, Real Estate Development, Corporate, Tourism, Capital-IPOs, financial markets and Banking, Commercial, and Insurance.

Prior to joining Meraas he headed up Al Tamimi & Company’s construction practice in Dubai.

Edward’s qualifications include Bachelor of Arts Degree (major in Political Science & Industrial Relations) from the University of New South Wales, and a Bachelor of Law with Honors the University of Technology, Sydney. Edward held an academic position as a part-time Associate Professor at Heriot Watt University, Dubai Campus, lecturing in International Planning and Property Law for the Masters program for the School of the Built Environment, and is also a part-lecturer and advisor in law with the Real Estate Regulatory Agency (RERA) training college, the Dubai Real Estate Institute and author of a number of real estate publications.

Edward is also a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators sitting on the panel with the Dubai International Arbitration Centre (DIAC); the Singapore International Arbitration Center and the list of Arbitrators with the London Court of International Arbitration.

Edward SunnaChief Legal Officer, Meraas Holdings

Ravinder BhullarSpecial Counsel, Baker Botts+971.4.436.3640ravinder.bhullar@bakerbotts.com

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Ravinder Bhullar has substantial experience of international arbitration concerning disputes in the construction, infrastructure and energy sectors. He has advised owners, contractors, governments, professionals and insurers on a diverse range of projects, including railways, roads, high-rise developments, marine structures, land reclamation, power generation, petrochemicals, oil and gas (onshore and offshore) and mining. In addition, he has significant experience of commercial disputes involving real estate, international trade, insurance and financial institutions.

Rav has represented clients in arbitrations seated around the world conducted under the rules of many of the prominent arbitral institutes, including the ICC, SCC, LCIA, DIFC-LCIA and DIAC, as well as ad hoc and UNICITRAL rules. Such disputes have been resolved under a variety of national laws.

Aside from representing parties in arbitration proceedings, Rav sits as an arbitrator.

Since 2006, he has held the position of Treasurer of the Society of Construction Law (Gulf). Rav was admitted as a Barrister and Solicitor in Victoria, Australia in 2002. He is also a registered practitioner of the DIFC Courts.

Philip PunwarPartner, Baker Botts+971.4.436.3690philip.punwar@bakerbotts.com

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Philip Punwar is a partner in the international arbitration and dispute resolution group of Baker Botts LLP. Philip was called to the Bar of England & Wales by the Honourable Society of the Inner Temple in 1989. He was elected a Master of the Bench of the Inner Temple in 2013.

Philip has extensive DIFC Courts experience. He obtained the first Freezing Order from the DIFC Court of First Instance in 2007 and appeared in the first appeal to the DIFC Court of Appeal in 2008. In 2008 Philip was counsel for the successful Claimant in the second trial to be heard by the DIFC Court of First Instance. In 2009 he appeared in the first case concerning the DIFC Arbitration Law 2008 to come before the DIFC Court of First Instance. Philip is the author of the official Commentary to the Rules of the DIFC Courts (Thomson Reuters, 2011) and currently Chairman of the Education Sub-Committee of the DIFC Courts Users’ Committee and Course Director of the DIFC Courts’ Advocacy Course 2013.

Philip has been heavily involved in initiatives to modernize the UAE’s arbitration laws. Throughout 2007 he worked closely with the UAE Ministry of Economy on the drafting of a new Federal Arbitration Law, which was released for public consultation in February 2008. As a member of the Dubai International Financial Centre’s 2008 Arbitration Law Steering Committee, Philip has also been influential in the development of arbitration in the DIFC. He is a member of the ICC Arbitration Commission and represented the ICC UAE at meetings of the Arbitration Commission held in Paris to debate and vote on the draft provisions of the ICC Arbitration Rules 2012.

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Jonathan Sutcliffe has significant experience in international arbitration and dispute resolution and has acted for numerous clients on a diverse range of international commercial arbitration, ADR and litigation matters in the energy, construction, hospitality, real estate, defense, insurance, international joint venture and film sectors and on investor-state disputes. Jonathan also sits as an arbitrator.

Jonathan is qualified in England and Wales and in New York and is registered as an advocate in the DIFC Courts. He is recommended for international arbitration and projects and energy disputes by various leading legal guides, including Chambers, The Legal 500 and The International Who’s Who of Commercial Arbitration.

Jonathan SutcliffePartner, Baker Botts+971.4.436.3635jonathan.sutcliffe@bakerbotts.com

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DisclaimerThis research was carried out by means of an electronic questionnaire. The results are provided as generic market information only. Laurence Simons and Baker Botts L.L.P do not make any warranties regarding the use, validity, accuracy or reliability of the results and information obtained. Laurence Simons and Baker Botts L.L.P will not be liable for any damages of any kind arising out of or relating to use of this information.

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