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ASIAN-ARAB CHAMBER OF COMMERCE Bangalore, Karnataka

International Commercial Arbitration Court

  • Compared with litigation in national courts, international arbitration presents two distinct and crucial advantages. First, in international contracts between parties from different countries, arbitration allows the parties to avoid litigating in each other’s national courts. For example, an American party who contracts with a Chinese party may not want to litigate any disputes in the Chinese courts; likewise, the Chinese party may not want to litigate any disputes in the US courts.

    A party may want to avoid litigating disputes in a foreign court for various reasons: the legal system may be unfamiliar; the party may feel that the foreign court system is too slow, burdensome, or costly; moreover, a party may feel that the foreign court may be biased, or flat out corrupt, and a party may not trust the foreign court’s capacity to fairly adjudicate the dispute. Thus, for strategic reasons, it is often the case in international business transactions that neither party wants to litigate any potential disputes in the other party’s courts. This is why parties end up negotiating an international arbitration clause as a compromise: it is often the only acceptable means of resolving a dispute for parties who may mutually reject each other’s suggested choice of courts.

    Second, international arbitration awards can be enforced in nearly every country in the world. Arbitration awards, like court judgments, are not self-executing and must be enforced by a court where the losing party’s assets are located. In international disputes, enforcement issues are complicated by the fact that there exist few international treaties that allow court judgments from one country to be easily enforced in another country. This often makes recovery of assets a complicated affair. By contrast, well over a hundred countries have signed an international treaty on enforcement of international arbitration awards, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) or New York Convention for short. This treaty means that, subject only to limited circumstances, each signatory country must recognize and enforce arbitration awards. Thus, the New York Convention facilitates enforcement of arbitration awards worldwide. By way of example, consider a party who wins a dispute against another party whose assets are spread out in multiple countries. If the winning party litigated in court and receives a favorable court judgment from country X, that party will have to check that each and every country where the losing party’s assets are located will recognize and enforce country X’s court judgment – the procedures for recognition and enforcement will likely be different in each country, and some countries may flat out refuse to enforce judgments from country X. By contrast, if the winning party receives a favorable arbitration award, the New York Convention will make it easier for that party to recognize and enforce the award in the various countries. In turn, this means that it is more likely that the winning party will be able to recover the full amount of damages awarded to it by an arbitral tribunal.

    Arbitration presents other advantages. Principal among these are speed and cost efficiency. Generally, arbitration proceedings are subject to less formal rules and procedures than court litigation, which can help speed up a dispute. In addition, arbitration awards are generally not subject to appeals (except for certain very narrow and limited grounds), which can also help bring down time and costs of a given dispute. However, these advantages are not automatic; rather, they depend upon the specific circumstances of the dispute, including the size of the dispute, whether the opposing party will try to obstruct the process, the particular rules chosen by the parties to govern the proceedings, and the selection of the arbitrators. A competent arbitration law firm will help navigate these issues and try bring a dispute to a close as quickly and cost-efficiently as possible.

    Finally, parties can select arbitrators with specialized knowledge about a certain issue or industry. This can be very advantageous for disputes in a highly specialized industry. By way of example, the coffee industry relies on specialized arbitrators who are also experts on the quality of coffee beans. Specialized arbitration institutions that deal with coffee disputes maintain rosters of arbitrators who must have a certain number of years in the coffee industry and meet other industry-related qualifications. Having a specialized arbitral tribunal adjudicate a dispute can save time and costs, because the parties do not need to spend resources educating the tribunal about the specific industry and type of dispute. Morever, having a specialized arbitral tribunal makes it more likely that the tribunal will arrive at a fair and correct result. When negotiating arbitration agreements, parties can specify that the tribunal members must have specific experience in an industry or type of dispute (e.g., minimum 15 years of experience in a field; current members in good standing of a certain professional association etc).

    Of course, there are times when arbitration is not necessarily the right choice. Because the parties must pay for the arbitrators’ services as well as administrative fees for arbitration institutions (such as the ICC) that administer the arbitration proceedings, sometimes it may not be worthwhile to arbitrate potential disputes rather than go to court. In other words, if the costs of arbitration equal a very significant percentage of the amount in dispute, it does not make sense to arbitrate the dispute for either party. A party weighing the advantages and disadvantages of international arbitration must carefully consider the cost of arbitration as well as other factors. Again, a competent law firm can help a party weigh these pros and cons.

  • International arbitration is a method for resolving business disputes between parties; it is an alternative to resolving disputes in court. Most often, international arbitration is created by contract: the parties who enter into a commercial contract agree to draft an arbitration clause into the contract itself. By including an arbitration clause, the parties agree to submit any future potential disputes to arbitration – that is, the disputes are to be decided by an arbitral tribunal composed of one or more arbitrators selected by or on behalf of the parties. The arbitral tribunal will usually decide the dispute according to a set of rules (for example, the ICC Rules of Arbitration) that the parties have designated in the arbitration clause itself. Arbitration takes a dispute out of the courts and is therefore an alternative to court litigation – it is helpful to think of arbitral tribunals as “Privatized Judges,” and arbitration institutions as “Privatized Courts” with their own sets of procedural rules (Note, however, that parties may also choose ad hoc arbitration, where no arbitration institution is selected).

    In practice, arbitrations tend to take place in hotel or law firm conference rooms. The parties and the arbitral tribunal agree on a place and time to meet; once an arbitration proceeding begins, the arbitrator(s) will decide the dispute much as a judge would in court (with some important differences, discussed below). The resulting decision, called an arbitration award, has the same binding force as a court judgment: international treaties and the domestic laws of most countries accept arbitration as a valid form of dispute resolution and will treat an agreement to arbitrate, as well as the resulting award, as valid and enforceable. This means that, subject to certain important limitations, an arbitration award will be recognized and enforced in the courts of virtually every country in the world. International arbitration has become a commonly used method of resolving disputes, especially in international contracts between parties from different countries. Indeed, international arbitration is often the only mutually agreeable means of resolving a dispute between two parties.


hassan-arab-darwish
Hassan Arab Darwish
Deputy Managing Partner & Regional Head of Dispute Resolution

Hassan Arab is a leading expert in all aspects of litigation and dispute resolution, with particular expertise in cases relating to banking, commercial law, insurance, construction law, contract law, intellectual property rights and Arbitration. 

As Partner and Regional Head of Litigation for the region at Al Tamimi & Company, Hassan has spent his career building one of the strongest litigation teams in the Middle East which Legal 500 has recognised as “having a great reputation for local court work with a number of really good practitioners”. 

Chambers Global has commended Hassan as a “real winner who gives excellent advice and solutions”. Hassan Arab has been recognized as a leading lawyer in the field of asset recovery and commercial litigation by the International Who’s Who of Business Lawyers.

Playing a leadership role in many professional organisations, Hassan is a past Chair of the Arab Regional Forum and has been appointed a Member of the IBA’s Legal Practice Division Council and Council Liaison Officer to the Arab Regional Forum. Hassan is also a Member of the Steering Committee of the ICC UAE Commission on Arbitration, Member of Geographical Advisory Board of Business law International, Editorial Member of the International Journal of Arab Arbitration. Recently, Hassan has been appointed as a Councillor of the LCIA Arab User’s Council and as Member of the DIFC Court Users Committee. 

Hassan is a regular presenter at conferences and seminars speaking on the many aspects of litigation, arbitration and dispute resolution in the Middle East.


khalid
Khalid Abdel Wahab Farag Afifi
 

Mr. Khalid Abdel Wahab Farag Afifi - Egyptian National, graduate of Faculty of Law, University of Cairo, Egypt and is practicing since 1989.

He began his career in the United Arab Emirates since 1995, by joining a leading law firm then namely Adel Habib & Partners and later has been successful in establishing the offices of Al Midfa & Associates Law Firm since 1997 in partnership with Advocate Sami Al Midfa, who worked as a Judge and Public Prosecutor at the time.

Since then it was no looking back for him and the firm has grown to have one of the best professional reputation in Dubai due to his professional attitude, hard work, honesty and integrity. With over 24 years of legal experience as a Licensed Advocate in the Courts of Egypt and of the UAE, he has independently handled Court litigation in UAE for sizeable private, multinational and corporate clientele, besides representing some Government Institutions.

He is one of the respected leading Litigators in Dubai Courts and deals with all kinds of litigation in court. He handled several enforcement cases for Arbitration Awards issued by various arbitration centers and jurisdictions. He also participated in many Arbitration cases to represent one of the parties in the arbitration disputes.

Being a voracious reader, he is able to discuss various topics, other than law, as well. He is very well read and highly intellectual. Protecting his reputation and that of his firm is the top most priority for him.

He has traveled extensively to UK, USA, Thailand, Canada and Europe in connection with professional engagements. He possesses the requisite skills to provide in-house legal services to overseas law firms as well.


Memberships
  • He is the youngest expatriate advocate holding a license to practice in Dubai Courts.
  • He is registered with the Egyptian Bar of Association [EBA] as a licensed Advocate in the Supreme Court.
  • He is a prominent member of Legal Researches and Studies Centre, Cairo and published many researches and studies in various branches of Law in Cairo.
  • He is a member of the International Bar Association (IBA).
  • He is also registered with The International Chamber of Commerce (ICC).
Essam Al Tamimi
Essam Al Tamimi
Senior Partner

Essam Al Tamimi has over 28 years of experience in litigation and dispute resolution in the UAE and the GCC counties. In 1989, he established what is now the largest firm in the Middle East, Al Tamimi & Company and currently holds the position of Senior Partner at the firm.

Essam has assisted federal and local governments in drafting laws and regulations relating to the Telecommunications Law Authority, Dubai Internet and Media City, assisted in the Abu Dhabi privatization of water and electricity and played a major role in drafting the privatization and ADWEA laws and regulations, assisted the Dubai Chamber of Commerce & Industry in drafting the Federal Industrial law and implementing regulations, assisted Dubai International Financial Centre Authority in drafting number of laws and regulations relating to the Authority, the Court and the Arbitration Centre and have been actively involved in commenting and reviewing most of the federal laws including the Arbitration law, Commercial Companies law and the Consumer Protection law. He has extensive experience in regulatory matters and has assisting local and federal governments on regulatory issues.

Essam’s principal place of practice is Dubai, United Arab Emirates but he also has extensive experience in advising and assisting client throughout the Arab region and in particular the GCC states where he has worked and advised and attended to projects in Qatar, Saudi Arabia, Kuwait and Iraq as well as sat as an arbitrator and appeared as co-counsel in a number of matters in the GCC counties. Mr. Al Tamimi has extensive experience in civil, commercial and banking laws in the United Arab Emirates, Qatar, Saudi Arabia, Kuwait and Iraq and has worked closely with Al Tamimi’s overseas offices in a number of matters.

Essam has acted as counsel and sat as arbitrator at a number of disputes regionally and internationally. He is currently on the ICC Court, Chairman of the ICC UAE Commission on Arbitration, ex- Chairman and Member of the Chartered Institute of Arbitrators, ex-member of the LCIA Court, ex-President of the LCIA Arab Users’ Council. He is actively involved in development of arbitration laws in the region and for the training and development of arbitration in the UAE and the region. His practice focuses primarily on local and international clients in shipping, banking, intellectual property, construction and commercial litigation. Essam has published a number of articles and books on litigation and arbitration in the UAE and setting up business in the region. He has received Gulf Legal Lifetime Achievement Award for outstanding contribution to the Gulf Legal Market. He is on the editorial advisory board of the ICLR. He is a member of the IBA Rule of Law Action Group Advisory Council.



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