REUTERS | Amr Abdallah Dalsh

Arbitration in Africa: Prof. Dr. Abdel Wahab, Cairo, part 1 of 2

Prof. Dr. Mohamed S. Abdel Wahab, Chair of private international law and professor of international arbitration at Cairo University, and founding partner and head of international arbitration at Zulficar & Partners Law Firm, commences our new series, Arbitration in Africa.

In Part 1, Prof. Dr. Abdel Wahab discusses his personal and professional background, including his current roles. He also considers arbitral institutions and centres in the Middle East and North Africa (MENA) region and Africa. In Part 2, he examines arbitral procedure and culture in Egypt and in Africa more generally, including the courts’ support for arbitration, recognition and enforcement of awards in Egypt, and African investment trends and investment treaty arbitration. He also reflects on the challenges facing arbitration practitioners in Africa/Egypt and offers advice to those who wish to pursue an arbitration career on the continent.

Personal and professional background

I grew up surrounded by books (pleasantly so!). My admiration and passion for law haunted me ever since 7th grade. I have come to know that any form of organised society requires laws and rules. Over the years leading up to university, I sincerely felt that “law is the science of life”.

My father was a former judge who had an outstanding legal mind. He was my role model and a true source of inspiration, though he never pushed or pressured me to study law; it was my own decision and passion.

Ever since I graduated top of my class at Cairo University (around 4,000 students), I realised that interdisciplinary research, comparative and international law are the future and I specialised in private international law; I currently chair the Cairo University private international law department. Through the realm of private international law, I developed a clear interest in international arbitration. I then received a Chevening Scholarship from the British government to pursue my postgraduate studies in the UK.

At that time, and unlike today, the doors of international arbitration were hard to push open by the younger generation. So I decided that one needs a competitive edge and technology was my choice; I started specialising in online dispute resolution and how technology can be used to resolve technology related disputes and beyond. That was my entry point. Over the years, I developed expertise in construction, oil & gas, telecommunications and financial disputes.

Current role

Currently, I combine academic teaching with practice. Academically, I continue to teach at the English, French and Arabic sections of the Faculty of Law at Cairo University, together with some visiting posts in foreign universities. I specifically teach international commercial and investment arbitration, English contract law and comparative private international law.

On the practice side, I head the arbitration group at Zulficar & Partners Law Firm, of which I am founding partner. I am also serving as vice-president of International Chamber of Commerce (ICC) International Court of Arbitration; court member of the London Court of International Arbitration (LCIA)‎; president of LCIA’s Arab Users’ Council; court member of the Casablanca International Mediation and Arbitration Centre (CIMAC); vice-chair International Bar Association (IBA) Arbitration Committee; member of the International Centre for Dispute Resolution (ICDR) / American Arbitration Association (AAA) International Advisory Committee; member of the Singapore International Arbitration Centre’s (SIAC) African Users’ Council; Member of the Cairo Regional Centre for International Commercial Arbitration’s (CRCICA) Advisory Committee; president of the Chartered Institute of Arbitrators’ (CIArb) Egypt Branch; member of the CIArb’s practice and standards committee and member of the CIArb’s Board of Management.

I also sit frequently as an arbitrator in high value complex cases across the globe and under all major arbitration rules and institutions. I have also acted as sole arbitrator, presiding arbitrator, party-appointed arbitrator, and counsel in more than 175 cases, including complex, high value institutional and ad hoc arbitral proceedings involving parties from the Middle East, Europe, Asia, Canada, and the United States.

Arbitral institutions and centres in the MENA region and Africa

There are many arbitral institutions in that region and many others in Africa. Amongst the notable arbitral institutions in the MENA region are (in alphabetical order):

In terms of caseload, the following institutions generated a good caseload across diverse sectors: the ADCCAC, the CRCICA, the DIAC, the DIFC-LCIA. The CIMAC is also a very promising and rising institution. The ICC International Court of Arbitration’s representative office located in the Abu Dhabi Global Market, is a welcomed move to expand ICC operations worldwide. As per the words of Alexis Mourre, the President of the ICC International Court of Arbitration, the ICC’s representative office in Abu Dhabi “is an affirmation of the increasing relevance of international arbitration in the MENA region”.

In addition to the ICC and the LCIA, as two of the world’s leading arbitral institutions offering their services to African parties, and the CRCICA and the CIMAC, as two leading regional institutions offering their services to the wider African continent, many other arbitral institutions also exist in Africa. Amongst the other notable institutions are:

Most recently, in the 17 Organisation for the Harmonization of Business Law in Africa (OHADA) African countries, the OHADA undertook a reform of their Arbitration Act. The revised Uniform Act on Arbitration came into effect on 15 March 2018 together with a revised version of the arbitration rules of Common Court of Justice and Arbitration (CCJA), which administers OHADA arbitrations from Abidjan in Ivory Coast. With these amendments to the Act and rules, foreign investors are now expressly permitted to bring a claim under an instrument for the protection of investments, including bilateral investment treaties (BITs) and local investment laws. Arbitrators have also been granted greater powers to consolidate proceedings and suspend proceedings to ensure the parties’ compliance with any preliminary procedural, admissibility or jurisdictional requirements provided for in a dispute resolution clause. Additionally, the new CCJA rules address ethical conduct by incentivising the parties to conduct proceedings efficiently, diligently and expeditiously. Moreover, arbitrators are now expressly obligated to inform the parties and the secretary general of the CCJA of any circumstances casting doubt on their impartiality and independence, and any challenge to arbitrators must now be brought within a time limit of 30 days. Furthermore, and as a result of the Getma vs Guinea case, the new CCJA rules provide that any fixing of fees by the arbitrators without the approval of the CCJA is void. In a notable effort to expedite and support enforcement of arbitral awards, the OHADA reformed Uniform Act now provides that local courts of OHADA member states must issue a decision on recognition and enforcement within 15 days. If no decision is issued within such period, the award is deemed recognised and enforceable. Also, any setting aside or vacatur motions must be decided within a window of three months.

The African continent is now experiencing not only exponential economic growth and well-deserved global attention, but is also witnessing a proliferation of arbitral institutions with a real challenge as to which institutions will continue and develop real caseloads, and which institutions will simply focus on training and alternative dispute resolution (ADR) awareness.

Zulficar & Partners Prof. Dr. Mohamed S. Abdel Wahab

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