World Leading Expert Speaking on Arbitration Around the Globe
“Transparency, candid advice, business oriented solutions and open communication with clients are key to a successful client-attorney relationship.”, speaks renowned expert Prof. Dr. Mohamed S. Abdel Wahab.
“Also, training and keeping the client abreast of recent legal developments that impact their business are of paramount importance. This could help shape corporate policies and enable clients to make informed decisions.
“The mark of a worthy practitioner involves a combination of: great attention to details, business oriented approach, solid legal base and upholding professional ethics.”
Discussing all things arbitration and foreign law, Prof. Mohamed offers captivating insights into the land of the law and dispute resolution.
Your doctorate focused on the application of foreign law in the age of globalisation; since the study was conducted in 2004, how would you predict the outcome to be today?
It is quite fascinating to note that the topic I elected to write a thesis on more than 17 years ago remains a topical issue to the extent that a world leading institution such as the IBA has constituted a sub-committee, under the auspices of the IBA Arbitration Committee, to tackle public policy in relation to enforcement of arbitral awards, and the sub-committee issued an excellent report last year on the matter. Public policy remains an escape clause that can be used and abused beyond its proper role and scope. However, it is worth noting that arbitration friendly jurisdictions and courts in leading legal systems do restrain the applications of public policy, reserving same to the flagrant contraventions of the fundamentals of the concerned legal system. Nowadays, courts in leading jurisdictions do understand that public policy is not a hunt for the better law and is not destined to offer national protectionism beyond that which is indispensable. Nevertheless, as the world grows more global and more divided, I predict that public policy will remain a hot topic for the foreseeable future and its heads will undergo profound transmogrification depending on the prevailing sacrosanct principles and policies that define countries at a given moment in time. Whilst everyone refers to public policy as an unruly horse, I consider it a hydra that must be tamed and restrained. Be that as it may, I find no better words than recalling those of the late Lord Denning, in Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch 606-607, who stated: “So unruly horse, it is, that no judge should ever try to mount it, lest it run away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice.”
Moreover, can you share the most important findings of your study, regarding English, French and Egyptian legal systems?
Amongst the most important findings of my study were the following: (i) there is a lot more commonality between legal systems than what may initially meet the eye; (ii) comparative law and interdisciplinary research are key to practitioners who aspire to practice internationally; (iii) much more novel and modern work is needed to legally and practically distinguish public policy from neighbouring concepts such as lois de police (overriding mandatory norms); (iv) harmonisation amongst legal systems having different structures, norms and principles is neither impossible nor overwhelmingly daunting; and (v) deciphering the cultural trends of globalisation can help ascertain the trajectory of public policy and assist in understanding the law and economics of certain legal principles.
Your expertise in arbitration focuses on a range of sectors, including construction, finance, oil & gas, and telecommunications; out of the range of sectors you deal with, which sector poses the most challenges? Why?
I believe all of the sectors you list are challenging. Changes in the global economy, jurisdiction-specific regulatory environments and the innovation brought about by the technological revolution do impact these sectors. For example, in construction, we are living an era of mega projects that require special expertise and skills in negotiating projects contracts and in dispute avoidance, dispute management and dispute resolution.
Similarly, the telecommunications sector is a fast-changing sector, which contracts and disputes require high level expertise in complex technical and regulatory issues, especially in developing economies that have not yet spawned a stabilised system for telecommunications contracts, licenses and disputes. Also, oil & gas offers a league of its own, where gas pricing and oil related disputes raise novel and intricate legal issues that necessitate hands-on expertise in a dynamic field that is in a constant state of flux.
In the specific context of finance, the Islamic finance sector is growing at approximately 15% per annum and Islamic banking products are widely used globally. There are more than 300 Islamic financial institutions worldwide, including “Islamic windows” of conventional banks. More than 55 developing and emerging market countries are involved in Islamic banking and finance. Over the past two decades, Islamic banking and finance products have proved to be compatible with international trade and investment. It is worth noting that Islamic sukuk, equivalent to conventional bonds except that both parties own the debt, are the fastest growing product on the financial market, and the sukuk market has increased at an average annual rate of 40%.
In any event, it is worth noting that the construction, oil & gas, finance and telecommunications sectors do raise issues of public and private interests and are indeed landmark sectors of development in diverse economies. I am hopeful that the pool of qualified practitioners that combine the necessary technical and legal expertise for sector specific disputes would benefit from the new international initiatives on diversity to enable more global inclusion and better generational and ethnic representations.
How do you envisage the role that Africa will play in the future of international arbitration?
I do believe that the African Continent has an important role to play in the future of international arbitration. Hitherto, African countries have not contributed much to international arbitration, but it falls upon us to exhibit the necessary set of skills that secures confidence and respect in African minds and enable others to access this pool of talent that adds much value regionally and globally. African States are not devoid of talent and possess all the necessary requisites and characteristics that facilitate their contribution to the edifice of international arbitration. I dare say that Africa has an outstanding pool of individuals who can easily compete and excel at international levels. The only issue is that more confidence, team work and opportunities are needed to help showcase such talent and knowledge.
Given the changing landscape of international arbitration, and the challenges facing traditionalists, I am of the view that the future holds credible myriad opportunities for African systems and individuals to play more proactive roles in re-shaping the arbitration landscape. However, the key to securing a well-deserved place for Africans in the world of international arbitration is founded on a six-fold criterion: knowledge, diversity, specialisation, competence, integrity, and innovation.
Moreover, after many years dealing with international disputes, which jurisdictions do you think need ‘catching up’ in regard to their legal system?
I would say that African and MENA region countries have a golden opportunity to ‘catch up’ and develop their legal systems in accordance with the prevailing state-of-the-art principles. Many of the world’s fastest growing economies are located in these regions, including Sub-Saharan Africa. This catching up is not difficult and could be attained through: (i) prudent investment policies, (ii) modernising the legal system and national laws, and (iii) empowering the judiciary to undertake the necessary reforms and innovate.
As a precedent thought leader in your field, can you label three important aspects future lawyers must consider, in order to pursue a successful career in arbitration?
My advice to all aspiring younger colleagues who wish to pursue a successful career in arbitration is to work hard, be patient and let their work speak for them. Success necessitates the existence of a combination of soft and hard skills. One must remain modest, strive to learn, work with due diligence and integrity, maintain high ethical standards, develop competence and expertise, continue to innovate and never lose the enthusiasm.
As a world leading international arbitrator and arbitration practitioner, what is your take on the Investor-State Dispute Settlement landscape?
The international investment arbitration landscape is changing and this is a fact. However, whether such changes are good or bad is a matter that remains to be assessed in light of the winds of change that are blowing across the Investor-State Dispute Settlement (“ISDS”) system. Moreover, whether the waves of change that are sweeping across the ISDS system are nothing but an ‘interim flash’ or truly a ‘global backlash’ remains open to debate. However, I am of the view that changes are indeed taking place, but surely the answer to any shortcomings of the presently existing ISDS system lies not in the creation of an exclusive State centric and/or State appointed investment courts. Principally, the growing fear of having privately constituted arbitral tribunals decide disputes in a manner that exposes host States to legal and financial risks and in a way that might negatively impact the host States’ sovereign right to regulate matters of public interest merit due consideration and attention. However, it remains interesting to witness States’ scepticism towards the ISDS system at a time when statistics show that States win more than lose. Whilst many speak of system ‘reform’ to justify the changes advocated, it is indeed legitimate to ask whether the aim is really one of ‘reform’, ‘re-formation’, or ‘reconfiguration’. In a nutshell, a successful ISDS system should remain founded on the balanced perception of its users, so that it is neither State-centric nor investor-oriented. System neutrality boost confidence and is a guaranteed recipe for success. It is now in our collective best interests to stabilise the ISDS system, dispense with any shortcomings thereof, maintain its independence and neutrality from unjustifiable influences, and ensure that the rule of law governs and prevails.
Prof. Dr. Mohamed S. Abdel Wahab
msw@zulficarpartners.com
www.zulficarpartners.com/
Tel: +20(2) 24612-147
Direct: +20(2) 24612-160
Prof. Dr. Mohamed S. Abdel Wahab is Founding Partner and Head of International Arbitration at Zulficar & Partners Law Firm, which has an arbitration team of (20) dedicated associates well versed in prosecuting international commercial and investment arbitrations.
Prof. Dr. Abdel Wahab is recognised as one of the best international arbitration practitioners in the world today and a leading thought leader in the field. His world class expertise on international arbitration, Egyptian and Arab Laws, Islamic Shari’a, telecommunications, construction law and practice, oil & gas and online dispute resolution is acknowledged by clients, peers and leading directories. He holds over fifty-five prizes for academic achievement, and has acted and appeared in proceedings governed by Bahraini, Egyptian, English, French, Jordanian, Kuwaiti, Libyan, New York, Omani, Pakistani, Qatari, Saudi, Spanish, Swiss, Syrian, Italian and United Arab Emirates law(s), as well as the general principles of law.
Zulficar & Partners is an international arbitration practice and corporate law firm based in the Nile City Building in the heart of Cairo, Egypt. It is well known globally for its world-class and award-winning arbitration group, and also specialises in Banking and Project Finance, Mergers and Acquisitions, Capital Market Procedures and Transactions, Oil & Gas, IT, Anti-Trust and Litigation. The Firm offers a comprehensive range of legal services to a diverse array of commercial, industrial, and financial Clients both in Egypt and internationally. Established in June 2009, the Firm has 10 partners and more than 70 associates and is expanding at an accelerated rate. The Firm was recently awarded, in 2017, the Global Arbitration Review Award for the Mediterranean and North African Dispute Resolution Firm that impressed in 2016. The Firm is a market and regional leader across all sectors.
