International Review of Law - 2 - The Future of Alternative Dispute Resolution - A Qatari Perspective, Conference Proceedings, مايو ٢٠١٧

Dear authors and esteemed readers,

It is with honor that I write this foreword for the International Review of Law (IRL) Special Issue of the Future of Alternative Dispute Resolution conference held in Qatar University, College of Law (QU Law), in May 2017.

QU Law continues a tradition of bringing together researchers, academics and professionals from all over the world. In this special issue, we have abstracts from 11 experts in law. Abou El Farag asks whether ADR is suitable for the resolution of intellectual property disputes. Alshorbagy and Elattar co-author an abstract and specifically focus on the rise and fall of international administrative arbitration from an Egyptian law perspective. Anani studies ADR from the perspective of economic disputes. Botchway takes us through the current and future trends of arbitrating natural resource disputes. Dahdal's abstract is on a comparative examination of the Qatar Financial Center (QFC) consumer dispute resolution scheme. El Shazly discusses resolving investment disputes with corruption, revolution and settlement from an Egyptian law perspective. Nader studies the validity of arbitration in the case of absence of signatures. Ahmed comments on the new Qatari 2017 arbitration law. Negm researches the future challenges and paradigmatic changes in international arbitration. Nouh's abstract focuses on ADR and the Qatari administrative contracts. Finally, Sharar comments on the role of the Civil and Commercial Court of QFC under the new Qatari 2017 arbitration law.

These abstracts will furnish the field with an excellent point of reference and will be an impetus to stimulate further study and research.

A special note of gratitude goes to my colleague Francis Botchway, who was behind the idea of this conference. I thank Fatma Al-Mesleh, Jon Truby, Yassin Elshazly and Ioannis Konstantinidis for working behind the scenes for months in preparation of the conference and in the final delivery of these abstracts. Very special thanks go to the conference sponsor Sultan Al-Abdulla and partners for their generosity.

I thank all authors and participants for their contributions without which we would not have been able to publish this special issue.

Intellectual property (IP) is the branch of law that protects innovations and creations, such as new technological inventions, literary, artistic and musical creations, distinctive signs, computer programs, trade secrets, microchips and geographical designations. These creations and inventions may be protected by patents, trademarks, trade secrets and copyright, or other types of IP. These intellectual property rights (IPRs) can nevertheless give rise to many types of disputes. A number of these disputes relate to validity and ownership, whereas others concern licensing to use the protected types of IP. In a number of cases, these disputes relate to illicit copying or counterfeiting or agreements concerning the transfer of IP.

This paper will examine two main issues. First, it explores the possibility of using different types of ADR, namely arbitration and mediation, to settle disputes concerning IPRs. In other words, can all disputes relating to patents and trademarks in particular be settled by arbitration or mediation? Second, if it is possible to use these mechanisms to resolve IP disputes, this paper will highlight the advantages for the parties of choosing arbitration or mediation over litigation, when confronted with such conflicts. In exploring the two issues, this paper will draw attention to a number of IP cases that have successfully been decided by arbitration.

This article proposes a new expanded take on the definition of commerciality of international arbitration and its ramifications on the applicable law to the merits, the jurisdiction and authority of courts to review and execute foreign arbitral awards.

The problem manifests in states with dual jurisdiction court systems such as Egypt and France, where there are ordinary courts and administrative courts. In such states, administrative courts assume jurisdiction over contracts entered by the state as a public person enjoying sovereign powers, i.e., administrative contracts, whereas ordinary courts’ jurisdiction extends to all disputes arising between private parties. Unlike ordinary courts, administrative courts apply public law and favor public interest considerations over private ones.

The case should be distinguished when it comes to arbitration even when the state is involved in a so-called administrative contract, for arbitration is a private means of dispute settlement. This is why article 1 of Egypt's Arbitration Law on Civil and Commercial Matters (Arbitration Law) expressly extends its scope of application to “all arbitration between public or private law persons, whatever the nature of the legal relationship around which the dispute revolves”. Furthermore, article 2 ties the “commerciality” of a dispute to its economic nature notwithstanding the parties’ capacities or the nature of their legal relationship whether contractual or non-contractual.

Despite the uncertainty created by Egypt's paradoxical court decisions in several precedents such as the oft-cited Chromalloy case, these provisions imply that the legislator intended to extend the provisions of Arbitration Law to all disputes of economic nature without distinguishing between civil and administrative disputes, providing that the matter relates to international transaction. A corollary is that only the provisions of Arbitration Law should govern any international arbitration over a legal relationship of an economic nature even when it relates to an administrative contract. It also follows that private law, i.e., civil and commercial laws, not public administrative law should apply to such disputes if Egyptian law is applicable to the merits. And this means granting ordinary courts an exclusive authority to review and enforce international arbitral awards.

This proposed interpretation, which controverts the idea of administrative contracts in international transactions, is in line with international commercial arbitration objectives as a private and consensual means of settling disputes between equals. Adopting such approach also helps restore investor confidence in the Egyptian government and encourage foreign investments needed to boost Egyptian post-revolutionary economy.

There has been a growing interest in arbitration during the twentieth centuries. This is because arbitration offers an (1) efficient means to resolve urgent disputes (2) entails cheaper costs compared to traditional courts; and (3) constitutes an administrative means guaranteeing trust and assurance among parties to disputes. Economic disputes usually require a certain level urgency along with trust and assurance toward the mechanism for conflict resolution. For this reason, many countries were urged to devote court chambers or establish competent courts for economic disputes' resolution in order to avoid the problems related to delays and complications of proceedings' along with high costs that usually characterize normal court proceedings. This trend has been recently adopted by some countries, including some Arabic countries, through establishing what is known as economic courts.

To reach the same objectives - namely flexibility, promptness and cost cutting by resorting to alternative means to resolve some disputes especially those relating to economic transactions, there has been an increasing interest in other alternative means of dispute resolution. Some countries and concerned parties have shown interest in these means particularly mediation and reconciliation that are perceived as appropriate means for the resolution of such type of conflicts. Indeed, resort to arbitration and access to justice have become – in many relevant contracts and conventions- conditional upon a clause for recourse to amicable settlement, notably mediation and conciliation. As this interest has appeared at both the international and national level, we will discuss in this paper its legal and feasibility scopes along with the consequences thereof.

Owing to the precipitous slump in world commodity prices, particularly fossil fuel, investors and other stakeholders have been trying to re-arrange, re-organize and re-position their investments and interests. The question that arises is: who bears the costs or burden of losses in the investments and the re-positioning? This allocation or rebalancing of costs and losses is predicted to generate disputes which would result in arbitration. Proposed mergers that may fall through, blocks and wells that may be abandoned, joint-venture partners that may not meet their obligations, insurance cover that may not be honored, etc., are likely to be sources of disputes. These will be in addition to “normal” resource disputes that revolve around resource nationalism, rights transfers, financing, development, operating, regulatory, corruption, environmental and social disputes, which occur in the natural resource business. This paper will explore the existing as well as the emerging or expected disputes in resource investment. It will argue that arbitration remains one of the most effective ways of resolving these disputes. However, there will be challenges.

These challenges will challenge the very legitimacy of arbitration as the most appropriate forum or means of resolving the disputes. This is because issues of bankruptcy, intellectual property or data ownership, public regulatory violations and negligence do not lend themselves easily to arbitration. Furthermore, some of the defenses such as force majeure, impossibility of performance, necessity and sovereign immunity to be raised in such disputes may prove problematic for arbitration.

In 2016, the Qatar Financial Centre (QFC) introduced a Customer Dispute Resolution Scheme (CDRS) in Chapter 8 of the Conduct of Business Rules 2007. The CDRS is an alternative to litigation for QFC participants (retail or individual) who have a dispute with an authorized firm. The CDRS is designed to be an independent, cost effective and binding avenue that acts as a buffer between the stage where service providers and clients fail to resolve a dispute directly and litigation. The main objective of the CDRS is consumer protection. This paper will examine the scope and nature of the CDRS and compare its salient features to similar schemes in Hong Kong, Australia and other comparable jurisdictions.

A CDRS is a form of ADR that does not have many of the formalities of arbitration and litigation. On the spectrum of ADR, a CDRS is somewhere beyond mediation and less than arbitration. Unlike mediation, a final decision in a CDRS matter is actually tendered by an independent adjudicator, and unlike arbitration, the final decision, at least in Qatar, is only enforceable by one side to the dispute (the customer or weaker party) against QFC authorized firms.

The focal point of CDRS arrangements is the customer. Matters can usually only be initiated by customers and the costs and procedures are tailored to accommodate individual and retail customers. In Qatar, legal representation is optional and the cost is free. The consumer-friendly nature of the adjudication, to a certain extent, conceals the significant monetary jurisdiction of the CDRS in Qatar. The maximum amount that the adjudicator can award in a CDRS matter is 400,000 QAR. This is not an insignificant amount. With so much money potentially at stake, understanding exactly how the CDRS in the QFC is cast is crucial.

The policy considerations faced by the Qatar Financial Centre Regulatory Authority (QFCRA) and that animate the CDRS space in Qatar require the balancing of two competing interests. First, there is the central consideration of enhancing consumer confidence and the protection of consumers from unfair or uncommercial conduct. Second, against this primary objective, policy makers must also balance the legitimate expectation that QFC authorized firms have to be free from vexatious actions and subject to fair and unbiased tribunals. This paper will explore how Qatar stacks up against other CDRS-type processes in other leading financial hubs around the world.

Although the outcomes of adjudications are confidential, the QFCRA has released thematic guidance on the types of disputes being submitted for adjudication. Moreover, a number of non-descript case studies have also been published for the purpose of informing the market about the types of disputes being heard and the manner in which they are resolved. Therefore, this study is based on a close analysis of these available resources and an examination of the applicable legal instruments in light of emerging trends and practices in comparable jurisdictions.

In 2011, a series of decisions were rendered by the High Administrative Court at the Egyptian State Council in which the court considered void the privatization of a few public companies which had been transferred to foreign investors due to the invalidity of the procedures of tendering and bidding and the corrupt practices accompanying these transactions. The court also considered null the arbitration clauses inserted in these contracts. During this period, the climate of the Egyptian revolution of 25 January 2011 pushed public opinion to welcome these decisions as a sign of popular victory against the old corrupt regime. Yet, this trend made the foreign investors anxious about the legal security and the stability of their investments.

Accordingly, the subsequent Egyptian government introduced a variety of legislative measures to assure the investors and to boost economic growth. These measures included the possibility of conciliation in financial crimes or crimes affecting the public fund and also forbidding third parties from challenging any public investment contract before the national courts. In 2015, new amendments were introduced to the investment law establishing a new ministerial committee to settle investment disputes.

From all the above, it is clear that the legislative and executive authorities were keen to secure smooth procedures to settle investment disputes outside the umbrella of arbitration. In this paper, we try to evaluate the different measures introduced in the Egyptian law and analyze its relation with arbitration whether as a complementary or competing process.

Refusal to sign the arbitration award is considered as one of the procedural controversies engendered by dissenting minority arbitrators. This happens when the arbitral tribunal is made up of more than one arbitrator. The dissenting arbitrator aims, thereby, at questioning the validity of the decision and therefore facilitating the annulment of the decision by the losing party. However, the absence of signature may be due to another legitimate reason: involuntary; namely in case of the arbitrator being taken ill, or voluntary; namely in case of the arbitrator's absence from the deliberations or proceedings.

National laws on arbitration as well as the arbitration rules set by arbitration centers or institutions, in varying degrees, require the signature of all the tribunal members. The Qatari Legislator- under the old regime only required the majority's signature. Nevertheless, an adjustment of this position has been made in the new Qatari Arbitration Law, Act 2 of 2017. According to this Law, the signature of the majority of the tribunal is deemed to be sufficient, but no reason for the absence of the minority's signature is required according to Article 31/1. This is based on the UNCITRAL Model Law. Consequently, we may ask this question: is the award binding? Who has to provide the reasons for the absence of the minority signature? What is the consequence for the absence of reasons? Through exploring the motive behind not signing the arbitration award by the arbitration minority, this paper aims at answering the above-mentioned questions in the light of the views evoked in the jurisprudence and comparative law literature.

The Qatari economy is considered as one of the most dynamic and fastest-growing economies in the world. Consequently, the State of Qatar has become one of the main countries attracting foreign investors. This is indeed the outcome of the efforts made to adjust the national laws in order to meet the needs of international investors and to modernize the economy to achieve the Qatar National Vision 2030. It is expected that FIFA World Cup 2022 will be an impetus to realize this vision.

Under these circumstances, Qatar had to adopt a new perspective on arbitration as an alternative means to settle disputes and to keep pace with international economic developments. This initiative was accelerated with the ratification of “The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards” and made part of the Qatari legal system by the Amiri Decree No. (3) of the year 2003.

Moreover, many countries around the world are adopting the UNCITRAL Model Law on International Commercial Arbitration (1985); along with the amendments adopted in 2006. The United Nations called upon its member states to take into account this model law when passing national legislation. Many countries adopted -fully or partially- the provisions of the UNCITRAL model.

In this respect, some questions may be raised: Did the New Qatar Arbitration Law No. (2) of the year 2017 answer the call of the United Nations? Does the new law adopt new trends of the rules governing the international commercial arbitration? Would this new law attract investors as per Qatar national vision? What are the manifestations of the new arbitration perspective in the new law compared to the repealed arbitration rules?

The unprecedented growth of international arbitration and the current state of euphoria should not serve to obscure the several challenges that lie ahead. While some challenges may only concern practical, albeit manageable issues, others may well turn into existential crisis. Will arbitration survive the backlash against it? Arbitration has come under the intense scrutiny of civil society, with many critical voices questioning whether international arbitration is an appropriate mode of dispute resolution, particularly for disputes that have important implications on national public policy and sovereignty, such as investment disputes. The Guardian (December 2013) described international investment tribunals as a “toxic mechanism” that allows “big corporations to sue governments before secretive arbitration panels composed of corporate lawyers, which bypass domestic courts and override the will of parliaments”.

Meanwhile, a new law enacted last month in Qatar modernizing the Arab nation's arbitration regime is being praised as a welcome development to encourage foreign investment in the country, but some practitioners still question whether the measure is actually a missed opportunity. To change this perception, arbitration lawyers and institutions must demonstrate the potential contribution of international arbitration to the rule of law. They also need to demonstrate that arbitration can function as an open and transparent system that takes account of the public interest, and can be a force of good not only for business but for civil society too.

Administrative agreements, namely public procurement agreements, are considered as the most important types of agreements in the countries adopting the Latin legal tradition. Indeed, under these agreements, the public budget is disbursed and public utilities are, at times, managed.

The conclusion and enforcement of these agreements definitely raise many and different disputes that require a fair and balanced settlement for both parties. However, the most important requirement of the settlement of these disputes is speed. This is because these agreements deal with economic values that keep changing and cannot be held in abeyance for a long time.

Hence, we should highlight the importance of studying the alternative means for resolving administrative agreements’ disputes in the Qatari law. Especially after the growth of public budgets over the past few years and the increase in the number of concluded administrative agreements dealing with great sums.

It is noticeable that the Qatari law lacks an integrated system related to the alternative means of resolving administrative agreements’ disputes. The Qatari law, instead, holds provisions that are scattered over different legislation related thereto. Although these Qatari legislation deal with alternative means of settling administrative agreements, they suffer from ambiguity and lack of many important provisions.

These provisions dealing with the settlement of administrative agreements’ disputes include the Auction Law No. (4) of the year 2015 (the provisions of which were different from those held by the Auction Law No. (24) of the year 2015); and also in the new Qatar Arbitration Law No. (2) of the year 2017. These provisions are also set forth in the Auction Law No. (4) of the year 2015 that established a competent committee for urgent resolution of administrative agreement's disputes. Provisions covering the alternative means for dealing with administrative agreements are also found in the Qatari Civil Law and other legislative texts related to the resolution of administrative disputes.

The Civil and Commercial Court of the Qatar Financial Centre (“the QFC Court”) was established by virtue of the Qatar Financial Centre Law No. 7 of 2005 as amended by Law No. 2 of 2009 (“the QFC Law”). The QFC Court has limited jurisdiction over specific subject matters. Under the QFC Law, and the QFC Court Regulations and Procedural Rules, the QFC Court has jurisdiction over civil and commercial disputes which arise from transactions, contracts, arrangements or incidences which take place in or from the Qatar Financial Centre and which are between parties that are established in the QFC. The QFC Court will also hear disputes which relate to civil and commercial disputes between a QFC established entity and contractors and/or employees of the QFC entity. In the case of contractors, what this means is that the contractor does not need to be established in the QFC but in fact may be established anywhere in the world. The QFC Court will also hear disputes which involve an entity established in the QFC and an entity established in the State of Qatar.

However, under Law No. 2 of 2017 “Issuing the Law of Arbitration in Civil and Commercial Matters” (the “New Arbitration Law”), the QFC Court has been conferred with additional powers to discharge certain supportive and supervisory functions over arbitrations seated in the State of Qatar, only if it is chosen by the parties as the Competent Court in the arbitration agreement.

This is an important development as it allows the parties, inter alia, to utilise the QFC Court, which is modelled on leading international commercial courts, in relation to the arbitral proceedings, and to work under procedures similar to those found in common law systems.

The QFC Court's new functions under the New Arbitration Law include the appointment of arbitrators in Articles 11(5)(a) and 11(5)(b), the removal of arbitrators (Article 13(1)), decisions on arbitral jurisdiction (after the tribunal has already decided) (Article 16(3)), assistance in taking evidence (Article 27(1)), and the setting aside of arbitral awards (Article 33(2)).

This article examines the jurisdiction of the QFC Court in relation to arbitration under the New Arbitration Law, key differences between the QFC Court procedures and other State Court procedures, and the importance of a well-drafted forum selection clause to confer jurisdiction on the QFC Court.