The Bahrain Chamber for Dispute Resolution (BCDR or the Chamber) organized a breakfast meeting in Dubai on 18 May 2022 as part of its regional promotional tour to present its various services in the field of alternative dispute resolution mechanisms and to provide an overview of recent developments at the Chamber.
The meeting was attended by more than 50 participants, including both local and international lawyers, arbitrators, experts, in-house counsel, representatives of multinational companies, and governmental and private institutions. It featured remarks by BCDR's Chief Executive Officer, Professor Nassib G. Ziadé; BCDR's Board of Trustees members, Messrs. Jan Paulsson and Reza Mohtashami QC; independent arbitrators, Mr. Adrian Cole and Ms. Nadine Debbas Achkar; BCDR's Senior Case Manager, Mr. Salim Sleiman, and Case Manager, Ms. Fatima Al Zayed Al Jalahma.
In his opening remarks, Professor Ziadé described BCDR's structure and operations. He explained that BCDR's casework is made up of disputes brought before the BCDR Court and disputes referred to BCDR's international arbitration and mediation wing. He stated that since its inception, BCDR had registered a total of 376 cases for claims amounting to USD 6.5 billion. Professor Ziadé recalled that in 2017, BCDR had adopted comprehensively revised arbitration rules, which were highly praised by commentators and users. He advised participants that BCDR was on the verge of amending its arbitration rules in 2022 to ensure that its services remain in line with prevailing best practices and conform with the highest international standards. BCDR's CEO also informed participants of BCDR's adoption of new sports arbitration rules in March 2022 available in Arabic, English, and French. BCDR is further expected to publish in the future new rules for the administration of ad hoc arbitrations by BCDR and new rules to govern disputes in the field of Islamic finance. Professor Ziadé also praised BCDR's state-of-the-art facilities and electronic services but attributed its success to its highly skilled and attentive personnel composed of lawyers, Bahrainis and non-Bahrainis, fluent in Arabic, English and French. BCDR's personnel and case managers receive continuing professional training and development to a consistently high level of service.
Professor Ziadé further noted that BCDR views training and educational opportunities as an integral part of its mission, regularly holding training sessions and workshops on arbitration and mediation and organizing world-class events on international arbitration. He observed that the Chamber's biannual law journal, the BCDR International Arbitration Review, has become internationally accepted as a leading scholarly publication, with highly regarded members of the international arbitration community regularly contributing to it. BCDR also launched a series of publications honoring Arab scholars and practitioners who have promoted international arbitration and international law. Each such book consists of scholarly essays written by leaders in the field.
Professor Ziadé also briefed attendees on BCDR's representation of the Kingdom of Bahrain at the United Nations Commission on International Trade Law (UNCITRAL) Working Group II meetings on Dispute Resolution on issues related to expedited arbitration and Working Group III on Investor-State Dispute Settlement (ISDS) Reform.
In closing, Professor Ziadé expressed his firm belief that the success of the BCDR is the result of many factors, including continued cooperation with other entities and institutions. Finally, drawing on BCDR's frequent organization of joint conferences with other institutions and its signing of cooperation agreements, Professor Ziadé opined that "success is achievable without having to vie with other arbitration institutions" and that "institutions can and do lend each other resources and expertise without damaging their business model."
Mr. Adrian Cole discussed Article 6 of the BCDR arbitration rules on expedited procedure. Drawing on his experience as sole arbitrator in a BCDR arbitration concerning a dispute relating to a major infrastructure project in Bahrain, Mr. Cole explained how Article 6 enabled the parties and the sole arbitrator to agree on a fast-track and economical arbitration. The result was that an award was issued within 6 months of the claim being filed with BCDR, despite several issues requiring resolution, including allegations of document forgery.
Ms. Nadine Debbas Achkar also shared her experience working with the BCDR, praising the diversity adopted in BCDR's strategy. She described her experience sitting on a BCDR arbitral tribunal as positive, pleasant, and constructive, commending the Chamber's helpful case management team. In particular, she noted that she had been appointed as Chair in the case in accordance with the list procedure set out in Article 9.2 of the BCDR rules. The process operated seamlessly and expeditiously.
In addition, Ms. Debbas Achkar discussed two specific provisions set out in the BCDR arbitration rules: Article 10 dealing with the impartiality of arbitrators, and Article 40 relating to confidentiality.
She observed that while most institutional rules limit themselves to a general statement relating to the impartiality and independence of arbitrators, Article 10.2 of the BCDR rules adopts a more detailed approach with respect to prospective arbitrator interviews and expressly sets out the matters which may be discussed during such interviews, namely (i) the general nature of the dispute, (ii) the candidate's availability, (iii) any conflicts of interest, and (iv) with the written agreement of all parties, the suitability of candidates for nomination as presiding arbitrator. Ms. Debbas Achkar noted that, in effect, the BCDR has enshrined into its rules a provision which exists in various soft law instruments (e.g., the Chartered Institute of Arbitrator's Guideline on Interviews for Prospective Arbitrators) thereby providing additional clarity to parties and arbitrators alike.
On confidentiality, Ms. Debbas Achkar noted that while surveys have shown consistently that confidentiality in international commercial arbitration is of importance to parties and that survey respondents believe that confidentiality should be an opt-out, rather than an opt-in, provision, most institutional rules do not squarely address this issue, referring only to the privacy of hearings and deliberations and to the confidentiality of awards. The BCDR arbitration rules differ and expressly expand the scope of confidentiality obligations to include confidential information disclosed during the arbitration by the parties or the witnesses. Again, this provision affords the parties and the arbitrators additional clarity.
Mr. Reza Mohtashami addressed Article 21 of the BCDR arbitration rules dealing with party representation covering two aspects of this provision. First, this rule makes the addition of new members of the counsel team subject to the approval of the tribunal, who can decline such approval if this would create a conflict of interest and jeopardize the composition of the tribunal or the integrity of the proceedings. Mr. Mohtashami considered this an important procedural safeguard to protect against the strategic appointment of counsel to delay or derail the proceedings. The second aspect of Article 21 relates to the five standards of conduct expected by the parties' legal representatives, which play an important role in setting out the "ground rules" for the arbitration, managing the parties' expectations, and ensuring that there is a level playing field. This is important when party representatives come from different jurisdictions with perhaps divergent ethical obligations.
Mr. Mohtashami also addressed the summary procedure provisions in Article 18 of the BCDR arbitration rules. He opined that BCDR followed other arbitral institutions in adopting a mechanism for the speedy disposal of manifestly unmeritorious claims and defences. However, whereas other institutions (notably ICSID and SIAC) have confined their early dismissal procedures to addressing claims or defences that are "manifestly without legal merit," the BCDR rules go further in potentially empowering the tribunal to determine on a summary basis "any legal or factual issue" that may be material to the outcome of the arbitration.
Mr. Mohtashami expressed the view that tribunals should exercise caution in adopting a summary procedure to determine contested issues of fact which may require a review of witness and documentary evidence, as this may raise due process concerns at the enforcement stage. This may be especially relevant in civil law jurisdictions where they are not familiar with summary judgment and strike-out procedures that are a feature of civil procedure in common law jurisdictions. He observed that an alternative means of disposing of an issue at a preliminary stage of the proceedings is available under Article 16 of the BCDR rules. This Article empowers the tribunal to make decisions on preliminary issues and bifurcate the proceedings as part of the tribunal's duty to conduct the proceedings "with a view to expediting the resolution of the dispute, avoiding unnecessary delay and expense."
Ms. Fatema Al Zayed Al Jalahma addressed the use of electronic means in BCDR's arbitration proceedings. She observed that BCDR's 2017 arbitration rules already allowed the use of electronic means of communication in BCDR arbitrations to increase the efficiency and economy of the proceedings. Nonetheless, BCDR issued recommendations and guidelines to arbitral tribunals and parties in the wake of the COVID-19 pandemic to encourage using electronic means whenever possible under the rules. Ms. Al Jalahma noted that such recommendations and guidelines contributed to reducing the effects of the pandemic on BCDR arbitrations. Although these directives and guidelines were motivated by the exceptional circumstances of the COVID-19 pandemic, she expected the measures to be routinely adopted in the future, and indeed informed participants that the anticipated 2022 BCDR arbitration rules will contain provisions imposing the use of electronic means in the general interests of greater time and cost efficiency in the conduct of BCDR arbitrations.
Mr. Salim Sleiman presented an overview of BCDR's recently launched 2022 sports arbitration rules, in Arabic, English, and French, with all three versions being equally authoritative. He explained that BCDR's sports arbitration rules are largely based on the provisions of the BCDR 2017 arbitration rules, with the necessary adjustments to cater for the specific needs of resolving sports disputes. Mr. Sleiman also stated that the rules draw inspiration from the rules of the most prominent international sports dispute resolution institutions. Mr. Sleiman described, the most noteworthy differences between BCDR's sports arbitration rules and its more general 2017 arbitration rules.
For more information on BCDR's 2022 sports arbitration rules, please click here.
Mr. Jan Paulsson delivered the closing remarks. He praised BCDR's excellent services in administering arbitration and mediation cases. He further highlighted the fact that BCDR created, in January 2022, a roster of part-time judges to hear BCDR Court cases in English. The roster includes Adrian Cole, Nadine Debbas Achkar, Simon Greenberg, Michael Grose, Karim Hafez, Michael Hwang, Neil Kaplan, Amani Khalifa, and Mr. Paulsson. Finally, drawing comparisons with Singapore, he opined that allowing disputing parties to use English in their BCDR Court disputes was a noteworthy development that is likely to enhance the reputation, prestige, and services of BCDR and cement Bahrain as a leading dispute resolution jurisdiction in the GCC and broader MENA region.