Saudi Arabia

20 April 2020

Yaseen Bin Khalid Khayyat

Introduction

From its inception, the Saudi Center for Commercial Arbitration (SCCA) Board and its diverse stakeholders understood the need to transform the entire context that arbitration and other forms of alternative dispute resolution (ADR) were practiced at home and perceived abroad. Only through a comprehensive, substantial and strategic overhaul that engaged and invested in all aspects of professionalising the nascent ADR industry could the evolutionary changes take hold and be seen to enhance the way commercial disputes are managed and resolved in the Saudi Arabia.

Global challenge and local diversity

Given gender diversity remains a challenging issue internationally for the ADR industry, the SCCA has and continues to work to address these challenges directly. Diversity in our field is about recognising the worth of each individual professional and acknowledging how these differences can benefit businesses and the economy as a whole.

This chapter provides an overview of how Saudi Arabia’s ADR ecosystem has been transformed and created a blueprint of ongoing enhancements that have and continue to be required to ensure momentum is sustained and the efficiency and engagement is successful for all those involved. All the key elements of this transformation are set out within the contextual focus of one of the top priorities of the Saudi Arabia’s strategic Vision 2030: gender diversity across the Saudi economy.

This chapter makes clear how increased gender diversity has been transforming all aspects of the Saudi ADR practice, profession and industry.

Strategic approach: Meeting ADR users’ demand for institutional leadership

One of the most respected surveys of the ADR industry’s users is the annual Queen Mary University and White & Case International Arbitration Survey. The 2018 survey, entitled ‘The Evolution of International Arbitration’, reported that: ‘whilst nearly half of respondents agreed that progress has been made in terms of gender diversity on arbitral tribunals over the past five years, less than a third of respondents believe this in respect of geographic, age, cultural and ethnic diversity.’ It further added finding, among users surveyed: ‘Arbitral institutions are considered to be best placed to ensure greater diversity across tribunals, followed by parties (including their in-house counsel) and external counsel.’ Users also urged that ‘to encourage diversity all stakeholders should expand and diversify the pools from which they select arbitrators; more education and awareness is required about the need for, and advantages of, diversity; and legal education and professional training in less developed jurisdictions should be improved to lead to a larger, more diverse pool of arbitrators.’ [1]

Encouragingly, these portions of the executive summary of the 2018 Queen Mary Survey read like the template adopted by the SCCA since 2014. Anticipating the needs and aspirations of commercial arbitration users, the SCCA developed a comprehensive and sophisticated multilayered, multi-year strategy to engage all segments and sectors to transform Saudi Arabia’s arbitration ecosystem.

Strategy

In the case of Saudi ADR, and the SCCA in particular, we wanted to begin with ensuring we achieve diversity in engagement and delivering on the promise among our various industries, regions, ages, experiences, processes and professions while engaging both men and women throughout all aspects.

Through our diversity strategy, we managed to engage with a multiplicity of industries (mining, telecoms, energy, manufacturing, tourism and more) regions (with offices and outreach across all three main provinces of East, Central and West), ages and experience levels (from university students to those young and new to the sector to the most senior experienced individuals), processes (negotiation, facilitation, mediation, arbitration and online dispute resolution, in all their roles (whether as parties, advisors, counsel, experts and neutrals)) and from an array of professions (accountants, business leaders, lawyers, et al) while engaging both men and women throughout all aspects, sectors and situations.

While these figures are significant and indicative of the serious focus, commitment and investment being undertaken, we recognise that these efforts must be sustained and redoubled in order to fully meet our responsibilities to the private and public sectors, along with our thought leadership role in our professional ADR service industry.

Campaign of initiatives

As part of the Saudi strategic professional ADR development programme, with its over 50 initiatives undertaken, thousands of female applicants and over 1,400 female stakeholders participating, diversity is now playing a critical role in making the legal and ADR system more accessible, responsive and successful.

Throughout this chapter, we wanted to draw attention to the set of challenges and solutions with the aim of helping practitioners and users to develop their own assessment, according to the resources brought to bear and the capacity building that have been realised. This report contains many of the specifics concerning the use of outreach, engagement and training to facilitate access to effective ADR and justice for parties involved in commercial relationships.

This chapter presents a practical, workable and sustainable approach that is yielding transformational results and is proof that these are the right steps for businesses, the legal community, the judiciary and the ADR industry to meet the evolving and complex legal and dispute management and resolution needs of all those doing business in Saudi Arabia and the wider region.

Networking

Due to the diverse and complex nature of ADR and the challenges this presents for practitioners, it remains imperative that networking opportunities alongside training and professional skills development programming is provided. As diversity in arbitration promoters such as ArbitralWomen and others have noted, only with the requisite support and delivery of the platforms that enable professional women to make the relevant professional connections, acquire the insights, learn the necessary skills, will local and regional professionals have the opportunities to hone their people and professional skills efficiently, meaningfully and quickly.

Young SCCA

In order to create similar networking opportunities for young people consistent with the best jurisdictions and centres around the world, we established Young SCCA, our international youth platform to encourage young men and women to launch themselves into this increasingly important industry. As elsewhere, we anticipate a huge response from the fast-growing, enthusiastic group of young Saudi ADR professionals.

Student Arbitration Moot Competitions

Among the most important contributions to transforming the arbitration ecosystem in the Saudi Arabia and meaningfully increasing gender diversity have been the two Student Arbitration Moot Competitions with distinct, yet complementary, mandates.

Middle East Pre-Vis Moot Competition

Last year, the SCCA became involved in US Department of Commerce’s Commercial Development Program’s (CLDP) major, long-standing regional initiative to advance the awareness and use of international arbitration in the region. Specifically, CLDP, alongside its regional partners, had developed an annual English language Middle East pre-moot programme that also engaged and enhanced the participation of key countries in the Wilhelm C International Commercial Arbitration Vis Moot, a UNCITRAL education tool that encourages the use of the Convention on Contracts for the International Sale of Goods, the New York Convention on the Enforcement of Foreign Arbitral Awards and other key arbitration rules. CLDP’s Vis Pre-Moot has drawn global attention and the SCCA has promoted the participation of Saudi universities’ faculty and student teams.

In this, Saudi female students have a longstanding and remarkably successful track record of participation in regional and domestic arbitration moot competitions. One example is the Middle East Vis Pre-Moot. Around 18 teams participate in this competition from over 10 different countries from the Middle East. From 2014 through 2018, an all-female team from Dar-Al-Hekma University from the Kingdom of Saudi Arabia was consecutively crowned as the best oral team in the Middle East. Initially, the team from Dar Al-Hekma University was the only Saudi team participating in the Middle East Vis Pre-Moot. However, since 2018, two additional Saudi teams from Prince Sultan University and Prince Mohammad Bin Fahad University, composed of both men and women, have joined the moot.

World’s first Arab Arbitration Moot

In 2019, the SCCA also partnered with the CLDP to develop and launch the first Arabic Commercial Arbitration Moot. The SCCA and CLDP identified and engaged select Saudi judges, lawyers, officials, law school faculties and students to promote this historic Arabic moot competition, including the development and support of the training of arbitrators, university faculties and students across Saudi Arabia in Riyadh, Jeddah and Dammam.

This important initiative provided Saudi students with the necessary legal skills, tools and resources to compete in the moot. Further, the Arab Arbitration Moot is, as CLDP explained:

an educational platform that engages students, academia, and practitioners to promote the use of international commercial arbitration in the Middle East. Its aim is to initiate the use of clinical legal education, develop Arabic legal scholarship, and improve the capacity of the next generation of Arabic speaking arbitration specialist in the region.

By design, the SCCA worked hard to ensure that this is a truly regional and gender diverse student competition with 17 of the 39 participating teams being all-female teams from 12 different cities across Saudi Arabia when it was kicked off in 2019–2020.

Our competition case drafting committee was chaired by Saudi female arbitration lawyer Ms Dara Sahab, of Squire Patton Boggs, who observed:

this competition is a game changer in the Saudi legal education system and will reap tremendous benefits for the future generation of lawyers by exposing them to key international arbitration and commercial law principles and practices. It is an added advantage and privilege that it is conducted in Arabic, producing a rare co-existence of the practice with the Arabic language.

Law firms

Law firms in Saudi Arabia are making great advances towards achieving gender diversity – not merely implementing quotas, but making changes at the ground level and ensuring that the pipeline of talent itself is diversified. These law firms day-to-day processes have been tailored to promote diversity and inclusion across the firm and to provide a safe and respectful work environment for all of their people – with several women leading the way.

Women leaders

Saudi ADR has also benefitted greatly from being able to learn from the example and draw on the experiences of inspiring female leaders living and working in the Saudi Arabia, focusing on their diverse backgrounds, surmounted challenges and success stories.

Our various forums offer both engagement among male and female professionals as well as private, all-female gatherings where these professionals can engage in open discussion format that provides audiences with a unique opportunity to learn, connect and support one another; thereby finding tangible solutions to a range of issues faced by women in developing their expertise and professional practices through this invaluable networking, often across the country, the wider region and beyond.

Success and role models

Equally valuable, we increasingly have Saudi women professionals who serve as role models in Saudi law firms and leadership positions across sectors and in other jurisdictions. In particular, the legal sector has become a leading performer in the empowerment of women and the SCCA is committed to contribute to this success by doing all it can to advance the role of females in the ADR industry, as is being undertaken globally, with increased efforts to encourage female leadership.

Among the increasingly prominent women in leading positions at law firms and large companies - we have the example of Shihana Alazzaz, the General Counsel of the Saudi Public Investment Fund (PIF), among the largest sovereign wealth funds in the world – and the major commercial law firms in Saudi Arabia have partners and associates recruiting the best of both men and women practitioners. Saudi law firms have women practitioners in important roles, to name just a few: DLA Piper (with its head of the Jeddah office), Khoshaim & Associates (affiliated with Allen & Overy) and White & Case LLP with the Law Office of Megren M Al-Shaalan are all among the many law firms who have all hired exceptional Saudi women lawyers.

We expect this growing trend to continue as the number of qualified and experienced female legal practitioners grows and their high quality contributions are seen and appreciated.

Multilayered structural initiatives

Among those contributing to the change has been the Saudi Ministry of Justice (MoJ) in its role to empower women in the work force, with an emphasis on increasing not only MoJ staffers but also lawyers and private notaries. In 2019, the MoJ launched a new initiative to increase roles and participation of women in the ministry and the legal profession. Leading by example, since the announcement of competitive exams for jobs in 2018, the MoJ has recruited 220 women so far. These new employees are contributing to ongoing social and legal research, administration and software development. The MoJ has also rolled out a programme aimed at raising women’s legal awareness through fairs in various regions, media campaigns and partnerships with relevant government agencies.

Increase in gender diversity among lawyers

Importantly, women are increasingly working and handling matters across the sector, including more women being granted licenses for private notary roles, providing the ability to issue and terminate powers of attorney and to notarise corporate charters and property conveyances, according the MoJ. Moreover, the number of licensed female lawyers has tripled in 2019 compared to previous years. The MoJ granted law practice licenses to 478 female lawyers, trained 3,140 others and licensed 67 women to be legal representatives of private companies. Given the huge enrolments of women registered in the law schools, and the size of those able to qualify already, these numbers are set to rise each year for years to come. [2]

This trend goes beyond exclusively lawyer activities. In February 2020, a local newspaper reported that 46 per cent of women were among 17,000 Saudis registered to become conciliators. This story highlights an important trend of awareness, inclusivity and diversity when it comes to access to and provision of services related to justice and conflict resolution. Surprising as this may be to people living and working outside Saudi Arabia, it is simply more good news underscoring the increased strategic importance placed on and investment in diversity. [3]

Overall, in fact, women are playing an increasingly important role in the Saudi workforce. The World Bank has taken notice of the successful implementation and impact of the government’s strategic national economic policies, which are beneficially transforming the diversity of the workforce. As Al-Arabiya, a major regional newspaper, reported:

The remarkable pace and breadth of the reforms has yielded rapid improvements in female labor force participation, going from 18 percent in 2017 to 23 percent in 2018 according to World Bank statistics.

As this trend continues, it can only improve the competitiveness and productivity of the Saudi economy, which will in turn attract even more foreign investment. [4]

Enhancing standards in the legal profession

According to the CIArb’s London Principles 2015, among the conditions necessary for an effective, efficient and ‘safe’ seat for the conduct of international arbitration is:

An Independent competent legal profession with expertise in International Arbitration and International Dispute Resolution providing significant choice for parties who seek representation in the Courts of the Seat or in the International Arbitration proceedings conducted at the Seat.

In 2019, in a welcomed move, the Saudi Bar Association launched the Saudi Accreditation Standards for Lawyers, describing it as ‘a professional qualification set of processes that endeavors to set national legal profession standards that meets international best practices and maintains a high level of professionalism’. Initiatives such as these are ensuring that Saudi lawyers will be competitive domestically and internationally - and will be effective as counsel in mediation and arbitration. It is important for Saudis to continue with all of these high-quality ongoing professional development programmes – they install confidence among clients at home and abroad – and enhance marketability of our men and women lawyers. Further, clients will increasingly be looking for quality and diversity among those they retain – looking for the best practitioners.

Arbitrator and mediator accreditation

In order to provide practitioners with an opportunity to enhance their skills and have a locally and internationally recognised accreditation designation, the SCCA partnered with the world-renowned, London-headquartered Chartered Institute of Arbitrators (CIArb) to bring a fully Arabic programme (along with offering an English version) to Saudi Arabia for all those wishing to avail themselves of the SCCA-CIArb Pathways to Fellowship. The uptake was immediate and broad based: within a week of opening, enrolment spiked and all 150 places were filled, with 30 per cent being women.

Training: In high demand

We are also working with the best international partners to develop the requisite high-quality professional development courses which will equip our young professional female lawyers. Working with the CLDP, we have offered several programmes each year allowing several hundred women practitioners to secure the training they need and seek.

Each course offered has been met with overwhelming demand; for example a three-day SCCA course in December 2017 offered in cooperation with the CLDP, a Women’s Legal Workshop on Negotiation and Mediation for a group of 35 distinguished female lawyers and legal professionals involved a rigorous application process, conducted by the SCCA, involving over 500 applications.

To meet this overwhelming demand, we continue to hold courses with our strategic partners. The SCCA has worked with the important encouragement and support of the Saudi Chambers of Commerce. The SCCA has also partnered with some of the world’s top ADR institutions, like the American Arbitration Association (AAA) and International Centre for Dispute Resolution.

In addition to our programmes for men and women, we have also held some exclusively for women, whether students or practitioners. We have received consistently high ratings for both formats – with some noting the appeal of all-female events to create a format that can focus on challenges and the collegiality of networking opportunities in both formats.

The requisite technical workshops encompassing all types and aspects of ADR have included fundamental skills, like contract drafting workshops and ADR clause drafting seminars. More advanced sessions have been oversubscribed - including our joint SCCA–AAA Arbitrator Symposia, which bring together more seasoned practitioners to discuss issues and challenges that working arbitrators face to discuss forensically and prospectively with some of the world’s top arbitrators. Specialised trainings like our ADR & Capital Markets Disputes event with the head of the worlds largest provider of such ADR, the Financial Industry Regulatory Authority, have attracted hundreds of participants.

The SCCA has also conducted professional mediation training for several hundred professionals over the past four years, including hundreds of female practitioners and students who have gone on to successfully advise clients and mediate themselves.

Our hugely successful SCCA18 and SCCA19 international commercial arbitration conferences in Riyadh have likewise attracting over 900 and 1,200 participants respectively with over 30 per cent female participation.

SCCA Secretariat

Within SCCA itself, the young layers hired as case counsel are now 50 per cent female.

In the three years since the SCCA Arbitration Roster was established, there are already 17 per cent women arbitrators. The development and increase of both these numbers remain priorities and the SCCA is assiduously committed to increasing both year upon year. This task being made easier by the vast pool of capable young practitioners emerging from all the capacity building and professional training undertaken by the SCCA over the past few years and still ongoing across Saudi Arabia.

ICSID investor–state arbitration

Saudi Arabia has appointed prominent international female arbitrators. In a recent ICSID case, Saudi Arabia nominated an internationally recognised female American arbitrator, New-York-based Ms Jean Kalicki, as its party appointed arbitrator.

Party autonomy and choice: Appointments, representation and more

Under the Saudi Arbitration Law, parties can appoint any arbitrator, mediator, lawyer, expert or other representative irregardless of gender, nationality or religion.

Parties are availing themselves of their freedom of choice and are retaining women ADR and legal professionals among others. For example, in addition to parties having female legal representation in SCCA mediation, the SCCA appointed its first female mediator in February 2020. Also this year, the SCCA received a request for mediation where women legal representatives have signed as party representatives on the submission to mediate at the SCCA. All are very promising indicators for women professionals and all clients.

A review of the notice taken of ADR appointments also points to a string of successes with regard to arbitration and mediation. There have been official press releases regarding the confirmed appointment of two female arbitrators from the courts of appeal in Saudi Arabia. The Saudi administrative Court of Appeal in Dammam approved the appointment of Saudi female arbitrator, Ms Shaima Aljubran¸ in the field of commercial disputes. Moreover, the Court of Appeal in Makkah Province confirmed the appointment of Ms Rabab Ahmed Al-Ma’bi as an arbitrator to settle commercial disputes between two companies in Jeddah. [5]

Given the confidential nature of much commercial ADR, whether mediation or arbitration, as well as the fact that ad hoc ADR remains quite widespread in Saudi Arabia and therefore less conducive to observation, when it comes to tracking and analysis we only have the above noted appointments that are in the public domain. Others may simply not have been publicised. Thankfully, there is ever more publicly available information related to court judgments and increasing local and foreign media scrutiny and coverage – all contributing to a more accessible and transp­arent justice system, including, we anticipate, more news of female appointments.

SCCA CEO Dr Hamed Merah’s determination to ensure the engagement of men and women of all ages across the professional spectrum and regions of Saudi Arabia has yielded promising results:

Our team is clear that one of my top priorities is diversity in all its manifestations. It’s essential to realizing the full potential of ADR for all stakeholders: parties and neutrals. Thankfully, the response has been overwhelmingly positive in terms of enrolment and overall participation. Now that we have an ever growing pool of talent – it is up to all of us, especially as ADR providers, to build the requisite awareness and buy-in needed to see diversity among arbitrators and mediators, counsels and parties themselves. SCCA is here to provide a platform and a service for all parties.

Commitment to the future

Chapters in the GAR: Middle Eastern and African Arbitration Review often feature updates and re-evaluations of the state of affairs in the relevant areas impacting ADR within their particular markets. This chapter speaks to the comprehensive strategy and undertakings that have already transformed Saudi Arabia into an Arbitration-friendly jurisdiction with increasing gender diversity.

We encourage all readers to monitor our efforts and progress – as we commit to sustain and realise the promise of all our people and all those who come to partner, invest and do business across Saudi Arabia and beyond.

This chapter outlines the vision, the actions and brings together the recent results – which are broad and substantial – representing the impact already of this strategic direction. The results of our first three years will continue and we will ensure these trends increasingly yield the results of making diversity a reality.

The vast numbers of Saudi women successfully completing their university and professional studies, the dramatic growth of participation of women in the Saudi workforce and our increasingly inclusive and diverse legal and ADR services sectors all point to a sustained transition that will continue until it is fully realised. We also have the added expectation that, as a strategic industry for commercial development in Saaudi Arabia, ADR will continue to do its part to tap into all segments of society across regions, generations, genders and professions.

The SCCA and all its many partners and stakeholders within Saudi Arabia and beyond continue to be fully invested and committed to a fully level and inclusive and diverse commercial environment that enables all those working in good faith to prosper and benefit, as is their right and due. Participation and access to justice are fundamentally linked.

Increasingly, ADR is playing an outsized and efficacious role in increasing the quality and access to justice by individuals, families, communities and commercial enterprises. By enhancing the speed, containing the cost and creating mechanisms that are more industry-specific, culturally inclusive and relevant – while also raising the bar in terms of standards, ethics and quality as well as inclusive diversity and reach – our field of conflict management and resolution is transforming the experience and opportunities for all.

There is still a way to go, but through our collective and individual efforts and engagement and investment we are empowering women to develop, contribute and lead. We commit to the requisite patience, persistence, inclusiveness to get ‘better diversity’, which internationally acclaimed arbitrator Ms Lucy Reed suggested was needed to keep heading in the right direction.

Let us conclude with the words of another successful female Saudi lawyer, Ms Waad Alkurini, a project finance lawyer in Riyadh office of White & Case LLP with The Law Office of Megren M. Al-Shaalan: ‘A lot is changing, and I think it’s important to celebrate how far women have come.’

Appendix:

The findings of ArbitralWomen also appear to support our approach. Even before becoming aware of ArbitralWomen, and their important work promoting women and diversity in arbitration, we decided to approach it in a comprehensive manner that fortuitously addresses many of the key undertakings identified by ArbitralWomen as strategic objectives and vital deliverables to achieve gender diversity.

Specifically (and selectively, with thanks):

  • ‘advancing the interests of female practitioners and promote women and diversity in international dispute resolution’;
  • ‘enable women to meet for professional, cultural, and academic purposes’;
  • assist in the professional development of women in dispute resolution;
  • provide mentoring for women to advance their careers in dispute resolution;
  • foster communications and exchanges of information of interest to members and other practitioners in dispute resolution;
  • organise meetings, conferences, training seminars and other events connected with dispute resolution;
  • publish information papers, notes of conferences or other research documents; and
  • provide sponsorship, to the extent possible and under the conditions established by the Board, for women law students or young women lawyers to participate in law competitions.

Notes

[1] The Evolution of International Arbitration, 2018 Survey by Queen Mary University / White & Case International Arbitration (http://www.arbitration.qmul.ac.uk/research/2018/), page 2.

[2] “MoJ boosts women’s access with legal practice licenses and jobs” - Saudi Gazette, March 7, 2019. http://saudigazette.com.sa/article/560685

[3] “46% women among 17,000 Saudis registered to become conciliators” Saudi Gazette http://live.saudigazette.com.sa/article/588133/SAUDI-ARABIA/46-women-among-17000-Saudis-registered-to-become-conciliators

[4] “How Saudi Arabia has increased female employment, and why the country benefits” http://english.alarabiya.net/en/views/news/middle-east/2019/08/12/How-Saudi-Arabia-has-increased-female-employment-and-why-the-country-benefits-.html Al Arabiya newspaper, Sept 2019

[5] KLUWER http://arbitrationblog.kluwerarbitration.com/2016/08/29/the-first-female-arbitrator-in-saudi-arabia/ Press release on this appointment is available in Arabic and http://saudigazette.com.sa/article/581186.