Some notes on Efficiency in International Arbitration – January 2020
This is an excerpt of my keynote speech delivered on 15 January 2020 at the Arbitration Symposium organised by Pinsent Masons International Law Firm as part of the publication of the Survey Results on International Construction Arbitration. The 2019 Survey has been prepared by Queen Mary University of London and Pinsent Masons. (see end of the article for internet and youtube links)
EFFICIENCY is a real concern for all the participants in ARBITRATION. Arbitration institutions have opened the door to improving efficiency in arbitration procedures, following different surveys which took place in the last few years and where stakeholders exchanged their points of views and experienced arbitration procedures.
To address concerns of time and cost efficiency, most of the national and international arbitral bodies institutions and centers have adopted expedited resolution processes for both small and medium size projects.
So, Efficiency has been achieved through, for example:
– Expedited Arbitration Rules (Fast Track) for Small Claims
– Electronic means of communication as a faster way to communicate
– Early dismiss of unmeritorious claims
However, dispute resolution community is eager to achieve more efficiency including the practice of dispute prevention mechanisms, the use of dispute boards, some other mediation use at the pre-arbitral stage and then through the proceedings until the rendering of the award.
Exploring the views of the users in construction and infrastructure projects, are very significant in the diagnosis of the critical concerns and to improve the way dispute resolution should be optimally approached.
As much as Construction projects can contribute to the development of a country, the same goes to the amount of disappointment when a project goes wrong and the construction is interrupted for several months or years.
It is very true that in chain of contracts related to construction, the cascade effect of disputes happening at the top level between the Employer and the Main contractor can have a negative impact on the sub-contractors, lenders, insurers etc. as it is common practice on construction projects to have more than one set of parallel contractual arrangements in place and where each of these contractual arrangements is regarded as a link in the overall contractual chain.
Such inter-related effects have been felt in several cases in Qatar or elsewhere and where the arbitration has lasted more than 2 years although the exertion of all possible efforts to reduce time and cost, dealing with complex arbitrations.
Definitely (certainly), the presence of multiple parties, multiple claims, factual and technical complexity, large amounts claimed and counter-claimed and evidentiary elements, are true factors in the long procedures of arbitration.
However, in all cases, the Arbitral Tribunal plays a pivotal role into the acceleration of the process without rush or violation of due process principle.
We need to move our thinking away from incrementally improving what we already do and address the fundamental question of how we can most effectively deliver what the users of arbitration need.
Using technology by creating arbitration platforms may contribute as an available option to reach efficiency and security for the amounts of information exchanged notably any sensitive information.
Furthermore, third party funding which was a novelty in our region few years ago has an increasing role to play in commercial or investment arbitration related to construction projects. Third party funding not only benefits Claimants. It may also assist a Respondent to know that an outside entity with much litigation experience has audited the case and decided to invest in it.
At a Qatari level, we praise Efficiency as well as to obtain predictable results in the light of the Qatari Arbitration Law of 2017. Predictability is to seek and obtain enforceable awards, exempted from any grounds of nullity.
The Qatari Courts have been tested in many cases and enforcement requests in 2018 and 2019.
– Already, the Court of Appeal has made it clear that Arbitral awards rendered under institutional rules, even seated in Qatar by non-Qatari arbitrators, are not obliged to render their final awards in the name of H.H. the Emir.
– That any defense of inadmissibility to hear the case at court due to the presence of a valid arbitration clause should be raised prima facie, otherwise any defense on the subject of the dispute shall be qualified as renunciation of the arbitration clause.
– There have been also some successful actions to seize financial amounts retained by an employer against the debtor of an arbitration award.
– There are still some improvements to do on the abusive calling of the letters of guarantee
– The unincorporated JV companies are treated as separate parties but with responsibility in solidum, unless the JV indicates otherwise.
Finally, Qatar and its arbitration community should draw practical lessons from this survey and find out the impact of the new trends and analyse the dynamism of the ever-evolving world of arbitration.