Alternative dispute resolution (ADR) in the Arab world
Alternative dispute resolution (ADR) mechanisms in the Arab world have been growing hand in hand with the resurgence of various countries as members of the fast growing club of successful emerging markets. The flexibility of arbitration, mediation and other ADR methods, as well as their speed, efficiency and confidentiality, have made them more attractive to investors and parties in contracts of an international nature. Consequently, a significant number of Arab countries have been busy updating and enhancing their laws and regulations on arbitration and mediation in particular. There is momentum behind ADR in the region.
Furthermore, the global economic downturn has led to a significant increase in the number of disputes in various sectors, and this in turn has provided an impetus behind the need to enhance the procedures applied by the various arbitration centers in the Arab world.
This development is not solely linked to the realities of modern commerce. In fact, the conciliatory approach and the notion of deferring to a neutral and objective personality for a decision, that ultimately underline all forms of ADR, are well steeped in Arabic and Islamic traditions.
There are at least two verses in the Koran that sanction the notion of arbitration and mediation. Furthermore, one of the most famous stories of the Prophet Mohammad’s early life involved him being chosen by feuding tribes, who could not agree on a vital element of the reconstruction of the Ka’aba, to resolve the dispute. The Prophet bridged the gaps between the quarreling parties by suggesting an original solution that was essentially a win-win for all. Other examples of arbitration and mediation abound in Islamic history.
At the outset, let us distinguish between mediation and arbitration. There are a number of differences between those two mechanisms.
Firstly, these methods differ in terms of the role of the appointed third party; in arbitration, an arbitrator is like a judge and his or her decision is final, whereas in mediation, the mediator works to try and bridge the differences between the parties and move them closer a settlement or conciliation. In a sense, mediation is the preferred option when the parties are still attempting to resolve their differences in a way that would allow them to continue their working relationship; whereas, arbitration is usually sought in order to reach a final determination on the overall dispute at the end of the relationship.
Secondly, the authority of an arbitrator is much wider than that of the mediator.
Thirdly, there are differences in terms of time limits, and venue considerations, between the two methods. In essence, arbitration is an attempt to replicate the judicial process but in a manner that is more specialized and streamlined. Mediation is a process whereby the parties agree to nominate a third party who would be tasked with trying to find common ground between the parties and resolve their differences, usually through the organization of meetings which are of a rather informal nature, at least in comparison with arbitration proceedings.
Finally, one of the main advantages of mediation is that it is far less costly than arbitration. In fact, it can be said that the costs of arbitration are its Achilles heel.
One of the most significant trends is the adoption of laws that deal specifically with mediation. In Jordan, the Law on Mediation for the Resolution of Civil Disputes was adopted in 2006. The law organizes the process of judicial mediation that takes place at the Court of First Instance. In accordance with Article 3 of the said law, the presiding judge may, upon the agreement of the parties or further to their request, refer the dispute to a mediating judge or a private mediator for the purposes of amicable resolution of the dispute. The mediator is then obliged by law to complete the mediation process within three months of the date on which the dispute was referred to him or her.
A similar development has taken place in the Emirate of Dubai, in the United Arab Emirates. By virtue of Dubai’s Law No. 16 of 2009, a Mediation Centre was established. The Mediation Centre will be annexed to Dubai’s Courts. The Centre is entrusted to review types of disputes that are defined by its Chairman. Disputes will be reviewed and amicably resolved through a number of experts, under the supervision, of the concerned judge, within a period that would not exceed one month from the date of the attendance of the parties before the judge.
The creation of such centers in Jordan and the UAE, as well as the existence of various mediation mechanisms through international organizations such the World Intellectual Property Organization’s Arbitration Centre, is likely to lead to a surge in the use of mediation as a method for the amicable resolution of disputes. This would be a welcome development, as it would entail the effective resolution of so many disputes in a conciliatory and timely manner, well before the matter escalates to reach a court room or an arbitration panel.
As for arbitration, we have also seen a number of positive trends in this regard in the Arab world. On the one hand, the trend towards the effective adoption of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) has solidified. The New York Arbitration Convention mainly enshrines the principle that a properly made arbitration award in one member country must be binding and enforceable in another member country, unless the award can be rejected on the basis of certain grounds for refusal of enforcement, which are narrowly defined in the Convention. The Convention also confirms the principle that if a court is presented with a dispute which the parties had agreed to refer to arbitration, then the court must refer the matter to arbitration upon the request of one of the parties.
Historically, the rate of adoption of the New York Arbitration Convention in the Arab world has been good. Jordan was amongst the first countries to adopt the Convention, which came into effect in 1959. Almost all Arab countries have since joined, with Kuwait joining in 1978, Saudi Arabia in 1994 and, more recently, the United Arab Emirates in 2006.
The challenge is to ensure that the exceptions that would allow a member country to refuse the enforcement of an arbitral award are applied in a strict and narrow manner. Under Article V(2)(b) of the Convention, the enforcement of an arbitral award may be refused if “the recognition or enforcement of the award would be contrary to the public policy of that country.” The parameters of what a country regards as “public policy” can be wide. In Saudi Arabia, an arbitration agreement or award is respected provided that it is not contrary to the principles of Shari’a law. Such a limitation falls within the “public policy” exception, but the key lies in the way such an exception is applied.
In the UAE, Articles 235 and 236 of the Civil Procedures Law (Federal Law No. 11 of 1992) confirm the principle that foreign arbitral awards will be enforced in the country, provided a number of conditions are met. These include procedural issues such as the proper notification and representation of the parties before the arbitral tribunal that issues the decision in the foreign country. Also, UAE courts may refuse the enforcement of a foreign arbitral award if it contradicts a previous judgment already issued by a UAE court or if it includes elements that “contradict public policy or morals.”
While in the past “public policy” exceptions have been defined in a wide manner that allowed courts to reject a number of foreign arbitration awards in various Arab countries, there is a discernible trend towards limiting the use of this exception, and applying it only in clear cases of contravention of the country’s moral or public policies.
Furthermore, in the recent past, various Arab countries have upgraded their arbitration laws to be in line with international best practices. This is evidenced by the increasing use of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. This model law was drafted by the UNCITRAL with a view to assisting countries that seek to improve their laws in such a way as to ensure the best possible procedures for commercial arbitration.
For example, Egypt adopted Law No. 27 in 1994, the Commercial Arbitration Law, which is based on the UNCITRAL Model Law. This aimed to enhance arbitrations procedures and resolve complications that arose under the provisions that dealt with arbitrations in the Egyptian Code of Civil and Commercial Procedures and provide a law dedicated to arbitration. Also, in 1994, Bahrain adopted a new international arbitration law (Decree no. 9/1994) that was based on the UNCITRAL Model Law. In 2008, Syria issued an arbitration law that is based on the Model Law as well.
The UAE is also presently considering a new Federal arbitration law and it is widely reported that the new law would be based on the UNCITRAL Model Law. Once enacted, the new Federal arbitration Law will replace the existing provisions in the Civil Procedures Law.
Finally, there is no greater proof of the growing popularity and importance of arbitration than the increasing use of existing arbitration centers in the region, and the founding of new centers. The Dubai International Arbitration Center (DIAC), whose rules are UNCITRAL based, has proven to be an excellent success. The number of cases that the DIAC is handling has been growing at a very impressive rate. According to one report, while the number of new cases with the DIAC in 2008 was 100, there had been 180 new cases registered with DIAC by August 2009. The Cairo Regional Center for International Commercial Arbitration, which was established in 1979, continues to be a great success.
Earlier in January, Bahrain announced the launch of Bahrain Chamber of Dispute Resolution, in partnership with the American Arbitration Association. It is reported that the Chamber will operate what is being called an “arbitration free zone.”
In conclusion, various Arab countries have engaged in an active process of upgrading their arbitration laws and those dealing with other alternative dispute resolution mechanisms. Arab arbitration centers are growing in significance, as more parties resort to the use of their services. These important developments can only serve to facilitate the infrastructure supporting international commercial contracts in the Arab world and, in turn, this will have very positive effects on investment and business growth in our region
PALACE AND CAMPANILE
A Trip Around the World with DWIGHT L. ELMENDORF, Lecturer and Traveler.
Close beside the cathedral of St. Mark stands the square Campanile, the most prominent feature in all Venetian views. Standing 325 feet high, the Campanile always dominated the picturesque low stretch of Venice’s skyline and gave a peculiar distinction to the whole scene. It seemed indeed to many Venetians and to lovers of Venice all over the world that the city had lost its crowning feature when, in 1902, the Campanile collapsed. It was originally erected in 900 and rebuilt in 1329. After it had fallen Venice seemed maimed, and the hearts of thousands felt the depression until the tower was rebuilt and the city could once again hold up its beautiful head. A new tower was built by Piacentini (pee´-ah-chen-tee´-nee) during the years 1905 to 1911, and on completion it was consecrated with most impressive ceremonies.
The Doge’s Palace was originally founded about 800; but was destroyed by fire five times, and each time rebuilt on a grander scale. The older part of the present edifice was built in 1309; while the west wing, facing on the piazzetta, was built between 1424 and 1438 by the celebrated architects Buon, father and son.
In gazing at the Doge’s Palace the eye is first caught by the upper arcade. From there the sentences of the “Council of Ten” were pronounced—listened to by the assembled people in silence and in awe.
The columns of this arcade are most beautiful, and have been pointed to with pride for years. Ruskin describes the detail of the sculptured columns, and declares that they are the finest of their kind in Europe. The interior of the Doge’s Palace is wonderful. Tintoretto’s painting of “Paradise” is there, a marvel in size and in detail. The residence of the Doges and the apartment in which the authorities held their meetings are there, revealing still much of their ancient glory. The palace is virtually a museum, and it shows a great display of fine paintings, containing, among others, notably works of Tintoretto, Paul Veronese, (vay-ro-nay´-seh) and Palma Giovane (jo-vah´-neh). Days could be spent profitably wandering through these halls, studying the treasures of art and history to be found there.
A Trip Around the World with DWIGHT L. ELMENDORF, Lecturer and Traveler.
It is not the physical conditions alone that make Venice unique. In the beauty and interest of its domestic architecture it ranks before any city in the world. The mosaics of Venice have been famous for centuries, and are today the marvel of all who see them. The spot where Venice has massed the gems of her beauty is St. Mark’s Place.
The view of Venice most familiar to stay-at-home bodies is the one to be had from across the water looking at St. Mark’s Place, and including, besides the cathedral of St. Mark, the Doge’s (doje) Palace and Campanile (cam-pa-nee´-le) Tower, and in some cases a glimpse of the Bridge of Sighs. The Piazza of St. Mark is called the “Heart of Venice.” All the life of the city surges there at certain times, then sweeps from there through its various channels. It is gayest on summer evenings, when the population turns out to enjoy the fresh air and listen to the military band. At that time the piazza is brilliant with fashionable people. Go there on a moonlight night, and you will find it a dream of beauty. You must see, of course, the pigeons of St. Mark’s. Flocks of them circle about the square or gather in groups on the pavement, wherever food is to be found. The pigeons of St. Mark’s used to be fed at public expense. It is not necessary now: there are always plenty of travelers that will pay them this pleasant toll for the sake of being photographed in their company. St. Mark’s Place is 191 yards in length, and in width 61 yards on one side and 90 on the other. The beautiful effect of it can hardly be expressed. It is paved with trachyte and marble, and surrounded by buildings that are not only important historically but most interesting architecturally.
The Church of St. Mark, now a cathedral, was begun in 830. The year before that the bones of St. Mark, the saint of Venice, were brought from Alexandria, and they now lie buried in the church. This marvelous building is Romanesque in style. During the eleventh and twelfth centuries it was remodeled and decorated with most lavish magnificence. In the fifteenth century it received some Gothic additions which enhanced its effect. In such short space as this it is impossible to do justice to the beauty of St. Mark’s. It is best by far to rest on what Ruskin has said in his “Stones of Venice”:
“The effects of St. Mark’s depend not only upon the most delicate sculpture in every part, but eminently on its color also, and that the most subtle, variable, inexpressible color in the world,—the color of glass, of transparent alabaster, of polished marble, and lustrous gold.”
The building is in the form of a Greek cross, with mosaics covering more than 4,500 square feet. Over the upper entrance are four horses in gilded bronze, counted among the finest of ancient bronzes. They may have adorned the triumphal arch of Nero or that of Trajan in Rome. The Emperor Constantine sent them to Constantinople, and from there they were brought by the Doge Dandolo to Venice in 1204. These horses were taken to Paris by Napoleon in 1797, and for awhile crowned a triumphal arch in that city. After Napoleon’s downfall, in 1815, the bronzes were restored to their original place at Venice.
VENICE, THE ISLAND CITY
A Trip Around the World with DWIGHT L. ELMENDORF, Lecturer and Traveler.
“The Pearl of the Adriatic,” she has been called. “Queen of the Sea” is another of the poetic terms applied to her. If all the expressions that have been used by admirers to pay tribute to the beauty of Venice were gathered together, they would make a glossary of eulogy of considerable size. It was inevitable from the beginning that Venice should receive such homage; for she has a beauty that distinguishes her from all other cities. She is absolutely unique in picturesque attraction and in romantic interest. There are many cities that draw the admiration of the traveler: there is but one Venice, and anyone who has been there and felt her spell cannot wonder at the worshipful admiration that she has received from the time of her birth in the sea.
The fascination of Venice for the traveler is such that ordinary terms of appreciation are insufficient. The city takes complete possession of one, and visitors who have surrendered to her charms are referred to as having the “Venice fever.” All who love beauty have had more or less violent attacks—the artist is most susceptible to it.
Your broken promises speak about you, but they do not hurt me
Now a day, we meet, we talk, I offer, you promise, and I listen.
Then, I wait, wait and wait, AND you do not perform or deliver.
You do not show up again because you got busy and forgot.
So, I will not go back and review your promises; I will move on.
Your promises were valuable for me, because I believed you care,
And now, I know that I am not on your mind any more.
Your broken promises speak about you.
Your broken promises speak about your commitments.
Your broken promises say “you are interested but not committed”.
But, I am committed and not interested,
So, I have to focus on only committed but not interested,
But I promise that once I am interested, ….
…. I will call you to share our interests with no commitment.
The way you do anything is the way you do everything…
And, I am committed and you are just interested, So,
…. we can not have a business together.