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BCDR-AAA Presentation to the

GCC Regulators Conference

Enforcing decisions: How alternate dispute resolution

balances the need for transparency with commercial confidentiality

bcdr-aaa.org

“You need to understand something,” he said. “You haven’t won anything. You just haven’t lost yet.”- p. 1210 of “Union Atlantic”novel by Adam Haslett, 2010

Courts: where relationships end

“reminding Henry that only the luckless, the petty, or the deranged wound up in court.”

- p. 177 of “Union Atlantic”novel by Adam Haslett, 2010

Where you send friendships to die

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• Alternative• Dispute• Resolution

• Local Options:–Bahrain–Cairo–Dubai–Tehran

ADR in the Middle East

• Mediation is simply FACILITATED NEGOTIATION.

• By contractually requiring disputes to be mediated, parties retain control over:

• When, where, how, who...–Parties only agree if they want to.–No one dictating a resolution.

»YOU HAVE CONTROL OVER OUTCOME»and CAN MANAGE RELATIONSHIPS

Mediation

• Parties have their disputes solved their way by people they select.

• How?– Parties agree upon and draft into the contract an arbitration

clause that specifies the agreed upon features, which should include:

• Who: Number of arbitrators (typically 1 or 3)• What: Applicable Law• Where: Where the arbitration will be heard =aka the

“SEAT”• How: Applicable Arbitration Rules

• Ideally adding: – Name of Arbitration Institution that will case manage

your case.– Some Rules limiting TIME and SUBMISSIONS

Arbitration

– “Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents explicitly referred to by a party for the purpose of supporting relevant facts presented in its case, carried out expeditiously.”

Procedure - Information Exchange Limitation

UNCITRAL Working Group II’s Arbitration Rules revision project

Balancing the need for transparency with commercial confidentiality

“The Tribunal considers that, whatever may be the position in private consensual arbitrations between commercial parties, it has not been established that any general principle of confidentiality exists in an arbitration such as that currently before this tribunal. The main argument in favour of confidentiality is founded on a supposed implied term in the arbitration agreement. The present arbitration is taking place pursuant to a provision in an international treaty, not pursuant to an arbitration agreement between disputing parties.”

- S.D. Myers Inc v Canada (Procedural Order No 16, Para 8 of 13 May 2000) Tribunal, operating under the UNCITRAL Rules, distinguished treaty arbitrations from private commercial arbitrations.

Balancing the need for transparency with commercial confidentiality

“Important steps towards greater transparency have been made both in the relevant rules and international agreements as well as in practice through the decisions of arbitral tribunals.

The debate now starting in UNCITRAL Working Group II will analyse the adequacy and sufficiency of such steps, not only to address the public interest issues, but also to strike a balance between the legitimate requirement of transparency and the interests and commercial enterprises in confidentiality (as well as protection of their trade secrets) and the often parallel interests of States in conducting strategic activities outside the unforgiving gaze of public scrutiny.”

- J. Martin Hunter, highly respected Arbitration Expert

Balancing the need for transparency with commercial confidentiality

Q> Privatisation of Justice?

Managing Relationships in Projects with Mediation and Arbitration

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• An overview of the approaches that are used to maintain relationships.

• One Project Manager working in Saudi Arabia noted: “We have yet to actually go to arbitration. All we have to do ask them to select their arbitrator...and a deal is struck.”

Balancing the need for transparency with commercial confidentiality