Reporting on the Sciences Po - Bredin Prat 1st edition of the MENA Arbitration Forum, by Abdullah Elseidy

Sciences Po Law School and Bredin Prat teamed up to host the first edition of the MENA Arbitration Forum, which reunited eminent international arbitration practitioners to provide with in-depth insights into the industry trends in the Mena Region. After welcoming, all distinguished speakers and the numerous participants, Professor Diego P. Fernández Arroyo emphasized his thanks to Bredin Prat and in particular Dr. Raëd Fathallah, as the Forum (now intended as a recurring annual event) is part of a long-standing cooperation between Bredin Prat and the Sciences Po Law School.  

Panel 1: A new era for arbitration in the region: Taking stock and looking ahead

The Forum’s first panel was moderated by Prof. Dr. Nassib Ziadé. To introduce the topic of the panel, Prof. Ziadé highlighted four main key themes for discussion: 

1. the reforms of the UNCITRAL code of conduct for arbitrators in international investment disputes relevant to the MENA region;
2. the appointment of arbitrators and challenge of arbitrators;
3. enforcement of foreign arbitral awards in the MENA countries; and
4. international institutions in the MENA countries.

Prof. Dr. Nayla Comair-Obeid shared her insights from the counsel's perspective on the criteria that parties consider when appointing arbitrators - including their specialization and relevant diversity factors. Prof. Dr Obeid also highlighted the trend of futile challenges against arbitrators and the consequence of these challenges on setting aside arbitral awards, with examples of court judgments in this sense in Egypt, Abu Dhabi, and other MENA countries.

Dr. Dalia Hussein delved into the intricacies of the reforms of the UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes, and more specifically Article 4 which prohibits double hatting. From Dr. Hussien’s perspective, the reforms only concern procedural matters. Dr. Hussien also Shed light on the Arab Investment Court which was established in 1983 and has been operational since 2003, and how this court's progress impacted investment disputes in the Mena region.

Stella Leptourgou walked the audience through the salient features of the selection process of arbitrators and the requirements for this choice under the ICC Rules. She pointed out some particularities that were taken into consideration while appointing arbitrators for MENA region cases, such as the cultural link to the region and the language of the country whose laws applied to the dispute. Ms. Leptourgou also shared insights about the evolution of the appointment mechanism of the ICC Court, along with statistics to demonstrate an increase in diversity and how this factor is considered by the ICC Court.

Sara Koleilat-Aranjo took on enforcement of arbitral awards in MENA countries and discussed recent developments in the legislative and regulatory framework leading up to a much more streamlined, smooth, and cost-effective means of enforcement in the region. Ms. Aranjo also highlighted recent legal amendments that promise to broaden the scope of arbitrable matters.

Panel 2: Construction and Infrastructure Disputes

This second panel discussion, moderated by Jean Pierre Harb, revolved around the management of construction and infrastructure disputes in the MENA region.

Aisha Nadar led a discussion on the role of the FIDIC contract in the Mena region and the management of the construction disputes.

The discussion touched upon the particularities of FIDIC clauses and their application in construction disputes in MENA Region.

Amani Khalifa, brought to light the nuances of the new Saudi Civil Code, tackling salient reforms introduced by the civil code concerning construction disputes, including reforms on the process of recovering lost profits and liquidated damages in construction agreements.

Prof. Dr. Georges Affaki drew the audience's attention to the background and drafting methodology of the Saudi civil code, noting that Sharia is the basic source of Saudi Civil Law and most laws in the region. Among other things, Prof. Affaki elaborated on the relevance between Sharia imperative principles and their contradiction with some FIDIC rules.

Panel 3: Geopolitics and arbitration: Looking back at political unrest in the MENA region and the role of investor-state arbitration

Laura Fadlallah, as moderator of the third panel, closely examined the implications of the political unrest in the MENA region and the role of investor-state arbitration in this context, highlighting two crucial points in this regard: (a) the impact of geopolitical unrest on the constitution of the tribunal, and (b) disputes and investor-state arbitration that have a strong political aspect.

Francisco Abriani referred to historical investor-state dispute examples in which the geopolitical aspect played a major role. He also referenced the principle of diplomatic protection and the politicization of disputes between ICSID member states and investors, and elaborated on how the ICSID Convention deals with this aspect through its provisions.

Dany Khayat gave a brief overview of the geopolitical aspects that can impact the constitution of the tribunal. He delved into the intricacies of the war clauses in bilateral and other treaties and their interpretation in this regard.

Mohamed Shelbaya observed the impact of political unrest and similar circumstances on the States' representatives and counsel in some cases, giving practical examples of the repercussions of the challenges faced when being in such a position. He also presented insights on the Full Protection and Security Standard in investment treaties and the practical application of the measures decided by arbitral tribunals.

Dr. Hamid GHARAVI elaborated on politically motivated measures and their implications, particularly focusing on practical cases of politically-driven expropriation measures by States.

Panel 4: Energy disputes in the MENA region

Moderated by Roland Ziade the panel explored the significance of public policy, force majeure, and hardship in the context of MENA energy disputes.

Michael Polkinghorne brought up the notion of “Efficient Breach” of energy contracts following the Covid-19 pandemic and its deleterious repercussions on consumption, price, and supply chain disruptions.

Marnix Leijten drew attention to the key implications of the Covid-19 pandemic in the energy sector, and the market reaction to these implications. He further highlighted the key role of force majeure provisions in energy contracts and to what extent such provisions can be invoked by the State or State-controlled energy companies in subsequent disputes.

Faris Nasrallah shared insights on public policy from the client's perspective, specifically how the notion of public policy is interpreted in energy disputes, both before international arbitration tribunals and before national courts in the MENA region.