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The Guide to Advocacy - Third Edition

Cultural Considerations in Advocacy: Arab World

This chapter features text boxes by the following arbitrators:                    

The overarching principles of advocacy in the Arab world

Practising law is a profession, which, together with the judiciary, aims to achieve justice, advance the rule of law and safeguard the rights of defence as well as litigants’ civil rights and liberties.[2] Traditionally, advocacy in the Arab world is perceived as a form of ‘standing justice’, where an advocate is required and expected to uphold certain fundamental ethical and professional duties,[3] 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 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.[4]

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 to ensure that both parties agree on the basic rules that will frame the arbitration proceedings and understand how the following stages of the arbitration will unfold.

Beware misunderstandings

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.[5] This requires avoidance of guerrilla tactics, abusive conduct and excessive aggression that may adversely impact the client’s interests. It is also of fundamental importance to note that an advocate’s obligation towards his or her 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 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 legislative 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 that have brought about a myriad of challenges and prospects, which define the practice of advocacy in the region and so impact 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[6] 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).[7] 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 reigns and prevails in arbitration, where the parties are free to choose their forum, their substantive applicable law and their applicable procedures. Parties to an arbitration 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 seat of arbitration.[8] 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.

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.[9]

Based on Articles 25 and 39(1)[10] of the Egyptian Arbitration Law No. 27 of 1994, parties are free to choose their procedural rules and substantive norms, and the Cairo Court of Appeal held that the parties are empowered to appear before arbitral tribunals or appoint others to represent them.[11] 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.[12] 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.

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 actively engage 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 actively engage in the discussion of the issues at stake, or even look to clarify the factual matrix of the case as part of their submissions. Based on my experience, doing so has been traditionally perceived by other 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.

I note that practitioners in the Middle East are now realising that such a collaborative approach can not 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 today is moving towards more efficiency and transparency. One way such transparency and efficiency may be achieved is through the interaction between the parties, their counsels and the arbitrators to get to the bottom of the facts in order to reach a fair conclusion 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 the counsels’ approach and demeanour.

– Essam Al Tamimi, Al Tamimi & Co

That said, it is worth noting that 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 such 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 such restriction, thus allowing foreign counsel and non-lawyers to appear and represent parties.[13] 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.

Contrary to the Egyptian Legal Profession (Advocacy) Law, the equivalent laws of Lebanon,[14] Libya,[15] Iraq[16] and Syria[17] 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 of the Egyptian Legal Profession (Advocacy) Law, the Qatari Legal Profession (Advocacy) Law,[18] reserves the right to represent parties before arbitral tribunals to lawyers. It considers that appearing before arbitral tribunals and rendering legal opinions are among the exclusive legal services reserved to lawyers.[19] However, the Qatari Ministry of Justice can authorise a reputable foreign law office of specialised expertise to provide legal services in Qatar for a renewable period of five years.[20] Also, foreign lawyers who are authorised to practise law in their own countries may 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.[21] Non-Qatari lawyers who are working in Qatari law firms may appear before arbitral tribunals provided that they are allowed to practise law in their own countries and they have spent at least three years working in a Qatari law firm.[22] Both Qatari nationals and nationals of the Gulf Council countries can be admitted to the Qatari Bar on reciprocity basis.[23]

Nevertheless, the Qatari Arbitration Law No. 2 of 2017 provides in Article (24/6) that: ‘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 also enacted 11 years after the Qatari Legal Profession (Advocacy Law), prevails and overrides the general law governing the legal profession at large.

Similarly, in the United Arab Emirates, Federal Law No. 23 of 1991 regulating the Legal Profession (Advocacy) restricts the right to practise law to those admitted to the UAE Bar,[24] and, like in Egypt, being a UAE national is a requirement for admission to the UAE Bar.[25] Exceptionally, a foreign lawyer may practise law in the UAE if certain conditions are met.[26] 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 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 agreeing the seat.

It is worth noting that 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.[27] Representation of parties in arbitration by lawyers not authorised to practise in the seat is not an unauthorised or uncommon practice of law.[28] In most jurisdictions, courts tend to adopt a liberal interpretation when it comes to party representation in arbitration.[29]

Thus, 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 pertinent jurisdiction risks being alienated and excluded in an era of competition among jurisdictions aiming to reposition themselves as leading seats of international arbitration. Insisting on applying restrictive and obsolete national rules on party representation will likely result in relocating complex arbitrations from the protectionist jurisdiction to an arbitration-friendly jurisdiction.[30]

Counsel ethics

As mentioned above, 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 the dispute and adversely impact the position of the party he or she represents. These include:

  • unnecessarily aggressive attitudes that are borrowed from every day court practice due to the scarcity of arbitration-specific practitioners in the region. Such attitudes impact time and costs, may adversely impact 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 to also 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 such 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 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;[31]
  • 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 profound lack of appreciation of the basic principles of international arbitration where 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 impacted by long-standing intricacies and perceptions of traditional litigation in local courts.

Guerrilla tactics

Guerrilla tactics are not alien to Arab arbitrations,[32] and they present a threat to the efficient and proper conduct of the 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 needed support to tackle these tactics they will not constitute a problem.

Guerrilla tactics can take many forms, ranging from mild to extreme. These include the following.

Bribery

Bribery occurs when a party offers, promises or grants an undue advantage to an arbitrator or a third person in order 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 would be carried out so that arbitrators, experts or witnesses would be reluctant to be part of the arbitral proceedings. This has a significant negative impact on the proper and efficient conduct of the arbitration proceedings and there are extreme examples from Arab jurisdictions, where arbitrators, witnesses and experts were improperly sued and subjected to unwarranted criminal complaints as a scare tactic by counsel to derail the arbitration proceedings. One notable example concerns the recent amendment of Article 257 of the UAE Penal Code, which has raised numerous global concerns as to the potential abuse of this provision by parties and counsel to arbitral proceedings, especially given that the amended provision exposes arbitrators, translators and experts to potential criminal sanctions,[33] noting that the captured legislative duties of ‘neutrality’ and ‘integrity’ are not expressly defined.[34] A second notable example from the Arab world is what one might call ‘engineered challenges’ against arbitrators, where 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 in the Arab world have normally dismissed unwarranted challenges and suits, there is still no test case as to whether such ‘engineered challenges’ will present a risk. It is, however, 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 where some Arab laws 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;[35] or (2) counsel may file a criminal action may lead to suspension of the arbitral proceedings.[36] Such 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 the proceedings, and, if so, measures must be taken by courts, tribunals and institutions to thwart such attempts.

Hacking, wiretapping and other surveillance methods

These methods are increasingly posing serious risks to the integrity of arbitral proceedings, where certain parties or counsel, acting unethically, can utilise 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 illicitly obtained 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 illicitly obtained or produced in breach of confidentiality or as a result of hacking and surveillance.

Fraud

This includes the deliberate manufacture of false statements, intentional destruction and concealment of evidence and production of forged documents, and 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 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 such 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 excessive amount 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.

Again, Arab arbitrations or proceedings involving Arab parties or counsel are not immune to such guerrilla tactics and it is not uncommon to witness one or more forms of these tactics, which institutions, tribunals and courts are supposed to combat. Combating such devious tactics can take place 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 (1) observing and referencing the applicable ethical code of conduct in the first procedural order; (2) providing a strict and detailed procedural timetable; (3) disambiguating counsel obligations and agreeing a workable style of advocacy; (4) detailing the appearance of witnesses and experts; (5) outlining the principles governing production and admissibility of evidence; (6) setting out the principles of good faith cooperation between counsel and the arbitral tribunal; (7) seeking interim relief from arbitral tribunals or national courts to preserve evidence or thwart devious tactics if the conditions for interim relief are satisfied; (8) seeking orders reprimanding counsel and notifying Bar associations of counsel misconduct; and (9) 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.

Cultural specificities

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,[37] (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.[38]

At the outset, it is worth noting that 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 impact 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 that is currently changing owing to the rise of a new generation of arbitration-specific practitioners that 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’.[39] 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.[40] 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 impact the arbitral process and its applicable norms.[41]

Further, contrary to common law systems and common law-trained practitioners, Arab civil law practitioners are generally not well-versed 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.[42] Thus, cross-examination in the Arab world may not always be as efficient or productive, which impacts the advocacy style where 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 impacts 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 properly and efficiently manage the proceedings in due consideration of any legal and cultural specificities.

Evidence and law

As 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 due 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[43] and the Egyptian Code of Evidence[44] contain detailed rules on procedures for document production and the value of documentary evidence. Specifically, Articles 20–27 of the Egyptian Code of Evidence lay down in detail the framework and conditions for ordering document production.[45]

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 among the other forms of admissible evidence, depending on the circumstances of each case.

Nevertheless, as stated above, 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.[46]

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.[47]

In this respect, Arab counsel may 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 also held that tribunals have the right to re-characterise the contract,[48] and to determine the proper branch of law governing the dispute.[49] 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.[50]

While the above is demonstrative of the liberal approach adopted in certain Arab jurisdictions in affording arbitral tribunals a broad authority under the governing law, it is worth noting that 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 disambiguate the rights and obligations of the arbitral tribunal with respect to the applicable law. These guiding principles include:

  • 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; and
  • 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 impacts 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.

Concluding remarks

Advocacy as an art of pleading and persuasion has spawned its own techniques and features in the context of arbitral proceedings. Among 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 indeed 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.[51] 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 impacted by diverse national traditions, yet is distinct from these.

As evident from this article, 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 impact the manner in which arbitral proceedings are conducted in Arab jurisdictions. While this article 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 impact Arab-related arbitrations; and (5) issues of evidence and law. The article also sheds light on the various ways in which Arab counsel can unnecessarily aggravate the dispute and adversely impact 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 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,[52] in Arab-related arbitrations featuring Arab counsel. These guidelines offer global standards on counsel conduct in international arbitration,[53] and are a useful set of non-binding guidelines[54] that do not restrict the appointment of counsel (party representatives) to persons with specific legal qualifications or affiliation to any domestic Bar.[55] So far, they have not yet gained the recognition they deserve in the Arab world, but it is expected that this will change in the not-too-distant future.


Notes

[1] Mohamed S Abdel Wahab is a founding partner at Zulficar & Partners Law Firm and head of international arbitration.

[2] See, e.g., Art. 1 of the Egyptian Legal Profession Law No. 17 of 1983.

[3] The IBA’s International Code of Ethics (1956 as amended in 1988) Rule 6 reads: ‘Lawyers shall always maintain due respect towards the Court. Lawyers shall without fear defend the interests of their clients and without regard to any unpleasant consequences to themselves or any other person. Lawyers shall never knowingly give to the Court incorrect information or advice which is to their knowledge contrary to the law’. Rule 1 also provides: ‘A lawyer who undertakes professional work in a jurisdiction where he is not a full member of the local profession shall adhere to the standards of professional ethics in the jurisdiction in which he has been admitted. He shall also observe all ethical standards which apply to lawyers of the country where he is working.’: Horacio A. Grigera Naon, ‘What Duties Do Counsel Owe to The Tribunal and Why?’ in B. Hanotiau and Alex Mourre, Player’s Interaction in International Arbitration (Dossiers, ICC Institute of the Word Business Law) 10.

[4] These principles are indeed consistent with the global practices. See for example the IBA General Principles of 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) states: ‘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’. The term court or tribunal used in the Principles is defined as including ‘an arbitrator in a binding arbitration proceeding’.

[5] In ICSID Case No. ARB/06/3 The Rompetrol Group NV v. Romania, the tribunal stated at para. 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.’

[6] Law No. 17/1983 concerning the Legal Profession (Advocacy), Official Gazette, Issue No. 13 bis, 31 March 1983, effective as of 1 April 1983.

[7] The Legal Profession (Advocacy) Law, Art. 3 reads: ‘Without prejudice to the provisions of the laws regulating the judicial authorities and the provisions of the Civil and Commercial Procedure Code, non-lawyers shall not be permitted to exercise the functions of a lawyer. Among the functions of a lawyer are the following activities: (1) Appearing on behalf of the parties before courts, arbitral tribunals, administrative entities exercising judicial functions, criminal and administrative interrogation authorities, and police stations; representing such parties in the cases initiated by or against them; oral advocacy; and, judicial procedures related to the foregoing […].’

[8] Art. 5(1) of the Lebanese Legal Profession Law requires that a lawyer shall be a national for at least 10 years.

[9] Public Prosecution Case No. 15063/2005 (Kasr Al-Nil Misdemeanours), 13 March 2006; South Cairo Primary Court, Case No. 2433/2006 (Central Cairo Appellate Misdemeanours), 24 January 2007; Cairo Court of Appeal, Petition No. 42119/JY77 (Criminal Cassation), 1 February 2012; Cairo Court of Appeal, Case No. 70/JY123 (Commercial Arbitration) (First Review), 7 May 2008; Court of Cassation, Petition No. 10132/JY78 (Commercial) (First Review), 11 May 2010; Cairo Court of Appeal, Case No. 70/JY123 (Commercial Arbitration) (Second Review), 9 March 2011; Court of Cassation, Petition No. 7595/JY81 (Commercial) (Second Review), 13 February 2014. For a more detailed analysis of these two decisions, see Amr Omran, ‘The Appearance of Foreign Counsel in International Arbitration: The Case of Egypt’ (2017) 34/5 Journal of International Arbitration 901-20.

[10] Article 25 of the Arbitration Law states: ‘The two parties to the arbitration are free to agree on the procedure to be followed by the arbitral tribunal, including the right to submit the arbitral proceedings to the rules prevailing under the auspices of any arbitral organization or centre in the Arab Republic of Egypt or abroad. In the absence of such agreement, the arbitral tribunal may, subject to the provisions of this Law, adopt the arbitration procedures it considers appropriate.’ Article 39(1) provides: ‘The arbitral tribunal shall apply to the substance of the dispute the rules chosen by the two parties […]’. In addition, the Egyptian Appellate Court cited Articles 1, 6, 10(1), 53, 54(2) and 58 of the Arbitration Law. See also Art. 811 of the Arbitration Law No. 90 of 1983 of Lebanon; Art. 18 of Law No. 03 of 2000 of Palestine; Art. 34 of the Executive Regulation issued by Ministerial Decree No. 39 of 2004 of the Palestine Law of Arbitration No. 03 of 2000; Art. 25 of Oman Law of Arbitration No. 47 of 1997; Art. 13 & 64 of Tunisian Law of Arbitration No. 42 of 1993; Art. 22 of the Syrian Law of Arbitration No. 04 of 2008; Art. 21 of the Sudanese Law of Arbitration 2005; Art. 24 of the Jordanian Law of Arbitration No. 31 of 2001; Art. 1043 of the Algerian Law of Civil and Commercial Procedures and Arbitration No. 09 of 2008; Art. 19 of the UNCITRAL Model Law; Art. 16 of AAA; Art. 24-337 of Morocco Law No. 447 of 1974; Art. 25 of the Saudi Law No. 34 of 1433; Art. 23 of the UAE, Federal Arbitration Law No. 06 of 2018; Art. 19 of the Bahrain Arbitration Law No. 09 of 2015; Art. 19 of the Qatari Arbitration Law No. 02 of 2017; Art. 21 of the Sudanese Law of 2016; Art. 22 of the Syrian Arbitration Law No. 04 of 2008.

[11] South Cairo Primary Court, Case No. 2433/2006 (Central Cairo Appellate Misdemeanours), 24 January 2007.

[12] Law No. 13/1968 promulgating the Egyptian Civil and Commercial Procedure Law (the Civil and Commercial Procedure Law), Official Gazette, Issue No. 19, 9 May 1968, effective as of 9 November 1968, Art. 76. A counsel need a notarised special power of attorney in order to be duly authorised to act on behalf of the principal before arbitral tribunals.

[13] See, for example, Article 33(5) of the UAE Federal Arbitration Law No. 6 of 2018.

[14] The Lebanese Legal Profession Law No. 7 of 1980 requires acquiring Lebanese nationality for at least 10 years to act as a lawyer (Art. 5/1), and only lawyers are allowed to stand or appear before courts (Art. 61).

[15] The Libyan Legal Profession Law No. 3 of 2014 requires Libyan nationality and actual residence in Libya for a person to act as a lawyer (Art. 4/1).

[16] Only Iraqi and Palestinian nationals can register with the Iraqi Bar to practise law (Art. 2/1); a lawyer who is admitted to one of the Bars in the Arab countries may appear before the equivalent court in Iraq on a reciprocity basis and with the Iraqi Bar president’s permission. A lawyer admitted to the Syrian Bar is exempted from the reciprocity condition. A foreign lawyer, who is not a member of any Bar in any Arab country, may nevertheless appear before Iraqi courts on the approval of the Ministry of Justice and the president of the Iraqi Bar provided that the foreign lawyer is accompanied by an Iraqi lawyer and after being verified for practising law in his or her own country (Art. 3).

[17] Legal Profession Law No. 14 of 1972: acting as a lawyer in Syria is restricted to Syrian nationals for at least five years with an exception to other nationals from the Arab countries on a reciprocity basis (Art. 10/2). An Arab lawyer who is admitted in his or her own Bar as a practising lawyer may appear before the equivalent Syrian courts in specific cases on a reciprocity basis and upon the approval of the Syrian Bar president or the respective local Bar (Art. 11).

[18] The Qatari Legal Profession (Advocacy) Law No. 23 of 2006 (Art. 3/1).

[19] Ibid, Art. 3/2.

[20] Ibid, Art. 7.

[21] Ibid, Art. 8.

[22] Ibid, Art. 9.

[23] Ibid, Art. 13/1.

[24] Art. 4/1.

[25] Art. 6/1.

[26] The conditions under Art. 6/2, 3, 4 provide that the 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 another recognised university. Additionally, the conditions under Art. 9/a, b, c should also be met, these are: previously having worked as a lawyer or a member of the judiciary for at least 15 years, having a legitimate residence in the UAE and practising law through an office of a UAE national registered as a practising lawyer.

[27] See, for example, ICC Rules of Arbitration 2017, Art. 26(4) (‘The parties may appear in person or through duly authorised representatives. In addition, they may be assisted by advisers’); LCIA Rules of Arbitration 2014, Art. 18.1 (‘Any party may be represented in the arbitration by one or more authorised legal representatives appearing by name before the Arbitral Tribunal’); HKIAC Administered Arbitration Rules 2013, Art. 13.6 (‘The parties may be represented by persons of their choice ...’); SIAC Rules 2016, Rule 23.1 (‘Any party may be represented by legal practitioners or any other authorised representatives …’); VIAC Rules of Arbitration 2013, Art. 13 (‘In the proceedings before the arbitral tribunal, the parties may be represented or advised by persons of their choice …’); CRCICA Arbitration Rules 2011, Art. 5 (‘Each party may be represented or assisted by one or more persons chosen by it …’); DIAC Arbitration Rules 2007, Art. 7.1 (‘The parties may be represented or assisted by persons of their choice, irrespective of, in particular, nationality or professional qualification …’); ADCCAC Procedural Regulations of Arbitration 2013, Art. 3 (‘The parties may at any stage select those who shall act for them, drawn from among lawyers or others …’).

[28] Williamson v. John D. Quinn Construction Co 537 F. Supp. 613 (SDNY 1982); Superadio LP v. Winstar Radio Productions, LLC, 844 N.E. 2d 246 (Mass 2006); Mscisz v. Kashner Davidson Sec. Corp., 844 N.E. 2d 614 (Mass 2006); Prudential Equity Group, LLC v. Ajamie, 538 F. Supp. 2d 605 (SDNY 2008). Zublin Muhibbah Joint Venture v. Malaysia, 2 January 1990, Federal Court of Malaysia: ‘a person representing a party in an arbitration proceeding need not be an advocate and solicitor within the meaning of the Legal Profession Act 1976; and that the said Act has no application to an arbitration proceeding in West Malaysia.’; ‘[a]n arbitration is not a court of justice in Malaysia as envisaged by the Legal Profession Act, 1976. It is a private tribunal’. See also Lawler, Matusky & Skeller v. Attorney General of Barbados, Civil Case No. 320 of 1981 (Barbados High Court).

[29] See Gary Born, International Commercial Arbitration (2nd ed., Kluwer Law International 2014), 2836, where he states: ‘Even in states where legislation does not expressly guarantee the parties’ right to select their representatives, recognition of this right is generally implied: … this freedom has historically been recognized in the arbitral process, is an inherent aspect of the arbitral process, is based on each party’s internationally-guaranteed opportunity to present its case and is what commercial parties expect when agreeing to arbitrate. In the few cases where the issue has arisen, courts have generally rejected claims that local law forbids foreign counsel from appearing in a locally-seated international arbitration. Indeed, the issue is so well accepted that it seldom arises in practice and even less frequently results in judicial decisions on the issue.’

[30] Julian Lew, Loukas Mistelis and Stefan Kröll, Comparative International Commercial Arbitration (Kluwer Law International 2003) at 539 (‘It is common practice that the arbitration tribunal may, for reasons of convenience, hold hearings at locations other than the place of arbitration without changing the seat of arbitration.’); see also at 542 (‘In almost all international arbitrations parties are represented by legal counsel of their choice … [I]n international arbitration the parties may select counsel on the basis of their experience. There are no restrictions on the choice of lawyers or even the lawyers being qualified. Parties can choose lawyers in whom they have confidence even though they are not qualified in the law of the place of arbitration or the applicable law’).

[31] See Art. 4.3 of the Code of Conduct for Lawyers in the European Union approved by the Councils of the Bar and the Law Societies of the European Union (2002): ‘A lawyer shall while maintaining due respect and courtesy towards the court defend the interests of his client honourably and fearlessly without regard to his own interests or to any consequences to himself or any other person’: referred to in Horacio A. Grigera Naon, ‘What Duties Do Counsel Owe to The Tribunal and Why?’ in B. Hanotiau and Alex Mourre, Player’s Interaction in International Arbitration (Dossiers, ICC Institute of the Word Business Law) 10. Article 4.2 of the Code states that counsel ‘must always have due regard to the conduct of the proceedings’ and ‘not make contact with the judge without first informing the lawyer acting for the opposing party’. Article 4.4 of the Code provides: ‘A lawyer shall never knowingly give false or misleading information to the court’.

[32] Guerrilla tactics are strategies employed by a party with the specific aim ‘to exploit the procedural rules for their own advantage, seeking to delay the hearing and (if they get any opportunity) ultimately to derail the arbitration so that it becomes abortive or ineffective’: Michael Hwang, ‘Why is There Still Resistance to Arbitration in Asia?’ in Gerald Aksen et al. (eds), Global Reflections on International Law, Commerce and Dispute Resolution — Libor Amoricum in Honour of Robert Briner, (ICC Publishing 2005), 401. See also Klausegger et al. eds. Manz, C. H. Beck Stampfli, ‘Guerrilla Tactics in Arbitration, and Ethical Battle Field: Is There a Need for Universal Code of Ethics?’ (2011) Austrian Yearbook on International Arbitration 297-313, where the authors state that ‘strategies employed by parties to arbitration proceedings that are ethical violations, involve criminal acts, or are ethically borderline practices’; E. Sussman and S. Ebere, ‘All’s Fair in Love and War - Or Is It? The Call for Ethical Standards for Counsel in International Arbitration’, 22(4) American Review of International Arbitration (2011) p. 212, where the authors state that guerrilla tactics are ‘strategies, methods and tactics, ranging from poor behaviour to egregious and even criminal conduct’.

[33] Article 257 of the UAE Federal Law No. 7 of 2016 reads 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’.

[34] At the time of writing, the author is unaware of any specific case where Article 257 has been successfully invoked and/or any criminal complaint progressed by the UAE authorities against any arbitrator, expert or witness on the basis of Article 257. While this is a commended negative approach by the UAE authorities, the revocation or amendment of this provision will undoubtedly ease the global concerns voiced against arbitrations seated in the UAE, especially that the UAE has successfully managed, over the past decade, to position itself as a hub for international arbitration in the Arab world.

[35] See, for example, Article 45 of the Egyptian Arbitration Law No. 27 of 1994 and Article 37 of the Jordanian Arbitration Law No. 31 of 2001 (as amended by Law No. 16 of 2018). According to both provisions, the law provides for a maximum period within which a tribunal must render an award (18 months in the case of Egypt and 24 months in the case of Jordan, unless otherwise agreed by the parties). However, it is submitted that both provisions govern ad hoc arbitration and are not mandatory. Thus, the parties are free to agree otherwise either by agreeing to different time limits or opting for institutional rules that govern their arbitration in this respect. This specific issue of seeking orders for termination of arbitral proceedings has been decided by Egyptian courts in the context of a CRCICA administered arbitration, whether the Egyptian Court of Cassation held that the parties’ choice of the CRCICA Rules denote an agreement not to apply Article 45 of the Egyptian Arbitration Law and so the decision to terminate the proceedings were revoked. See Court of Cassation, Commercial Circuit, Challenges Nos. 5745, 6467, 6787 for the Judicial Year 75, Hearing Session of 13 December 2005 and Court of Cassation Challenge No. 196 for the Judicial Year 74, Hearing Session of 13 February 2010.

[36] See, for example, Article 46 of the Egyptian Arbitration Law No. 27 of 1994 and Article 43 of the of the Jordanian Arbitration Law No. 31 of 2001 (as amended by Law No. 16 of 2018), which 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 act 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 case of alleged forgery or other criminal act, which opens the door for abusive tactics. This is specifically the case of Article 209(2) of the UAE Civil and Commercial Procedures Law No. 11 of 1992, which is revoked by virtue of UAE Federal Arbitral Law No. 6 of 2018, where Article 43 thereof provides for the same discretionary power afforded to arbitral tribunals under the Egyptian and Jordanian laws.

[37] See A. El-Kosheri and M. Abdel Wahab, ‘Trends in Document Production in Egypt and the Arab World’, in ICC Bulletin, 13, where the authors submit that ‘pre-trial discovery is foreign to civil law and Arab legal systems. Courts usually rely on documents and other forms of evidence submitted by the parties on their own initiative, and have long been loath to order a party or a third party to submit documents that might not be in their interest.’ See also, Doak Bishop and Margrete Stevens, ‘Documents Exchanges and the Collision of Ethical Duties of Counsel from Different Legal System’ in B. Hanotiau and A. Mourre (eds), Players’ Interaction in International Arbitration (Dossiers: ICC Institute of World Business Law), 23.

[38] See M. Abdel Wahab, ‘Iura Novit Arbiter: The Known Unknown’, Festschrift Ahmed Sadek El-Kosheri, Kluwer Law International (2015) pp. 3-25; M. Abdel Wahab, ‘Ascertaining the Content of the Applicable Law in International Arbitration – Converging Civil and Common Law Approaches’ (2017) 83(4) Arbitration 412-422.

[39] L. Reed and J. Sutcliffe, ‘The Americanization of International Arbitration?’, in Mealey’s International Arbitration Report 16(4) (2001) at p. 39. R. Doak Bishop, ‘Advocacy in International Commercial Arbitration: United States’ in R. Doak Bishop (ed), The Art of Advocacy in International Arbitration (Juris Publishing) 6.

[40] See S. Elsing, ‘Procedural Efficiency in International Arbitration: Choosing the Best of Both Legal Worlds’, Zeitschrzftfür Schiedsverfahren (SchiedsVZ) 3 (2011) at p. 122. Donald Francis Dovan, ‘The transnational Advocate’ in Albert Jan Van Den Berg (ed), Arbitration Advocacy in Changing Times (ICCA Congress Series No. 15) 3-8.

[41] I. Gomez-Palacio, ‘International Commercial Arbitration: Two Cultures in a State of Courtship and Potential Marriage of Convenience’, 20(2) The American Review of International Arbitration, (2009), p. 248 states: ‘[I]n its fullest sense, culture provides us with a sense of security about who we are, where we belong, how we should act and what we should do. When we are confronted by someone who does not share or understand these ‘assurances’, that is to say, someone who does not respond to the same cultural signals and codes of conduct, a sense of exile and insecurity is created’.

[42] John Beechy, ‘Advocacy in International Commercial Arbitration: England’ in R. Doak Bishop (ed), The Art of Advocacy in International Arbitration (Juris Publishing) 233, 254-256.

[43] Law No. 13 of 1968.

[44] Law No. 25 of 1968.

[45] According to Article 20 of the Law No. 25 of 1968, 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 such document at any stage of the proceedings.

[46] Antonio Crivellaro, ‘Effective Advocacy in International Arbitration: An Art, a Science, or a Technique?’ in Albert Jan Van Den Berg (ed), Arbitration Advocacy in Changing Times (ICCA Congress Series No. 15) 16-18.

[47] See for example, Article 53 of the Egyptian Arbitration Law No.27 of 1994; Article 53 of the Omani Arbitration Law No.47 of 1997; and Article 53 of the UAE Federal Arbitration Law No.6 of 2018.

[48] Egyptian Court of Cassation, Challenges Nos. 9540 & 9584 of Judicial Year (80), Hearing Session of 13 November 2012.

[49] Egyptian Court of Cassation, Challenge No. 86 of Judicial Year (70), Hearing Session of 26 November 2002.

[50] Cairo Regional Centre for International Commercial Arbitration (CRCICA) Case No. 633 of 2009.

[51] John Beechy, ‘Advocacy In International Commercial Arbitration: England’ in R. Doak Bishop (ed), The Art of Advocacy in International Arbitration (Juris Publishing) 233, 256.

[52] The IBA has over 170 Bar associations’ members, and its Arbitration Committee now has more than 2,500 arbitration practitioners from more than 115 countries around the world.

[53] These guidelines were drafted by the IBA’s Task Force on Counsel Conduct in International Arbitration (IBA Task Force). In its work, the IBA Task Force, under the auspices of the IBA Arbitration Committee, addressed the question of ethics/appropriate conduct of counsel in international arbitration head on. See John Miles, Elizabeth W. Karanja and Nikhil Desai, ‘Experiences from African Legal Systems’ in Gunther J. Horvath and Stephan Wilske (eds), Guerrilla Tactics in International Arbitration (Wolters Kluwer 2013) 172- 184.

[54] William J. Rowley, ‘Guerrilla Tactics and Developing Issues’ in Stephan Gunther J. Horvath and Stephan Wilske (eds), Guerrilla Tactics in International Arbitration (Wolters Kluwer 2013) 28-9. The author states that ‘The IBA Guidelines are intended to be multi-purposed. One purpose is to contribute to the culture of international arbitrations. Another is to enable the adoption of the IBA Guidelines by tribunals and parties at the start of an arbitration. This way, the tribunal and parties could refer to a transparent standard of conduct throughout the arbitral proceedings.’

[55] The Guidelines define ‘Party Representative’ (or ‘Representative’) as follows: ‘any person, including a Party’s employee, who appears in an arbitration on behalf of a Party and makes submissions, arguments or representations to the Arbitral Tribunal on behalf of such Party, other than in the capacity as a Witness or Expert, and whether or not legally qualified or admitted to a Domestic Bar’ (emphasis added). For a commentary on the Guidelines, see generally Peter Ashford, The IBA Guidelines on Party Representation in International Arbitration: A Guide (Cambridge University Press 2016).