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The ADGM Arbitration Centre Arbitration Guidelines: soft law hardcore…

The Abu Dhabi Global Market Arbitration Centre (ADGMAC) has recently launched its Arbitration Guidelines to the great acclaim of the local arbitration community. The Arbitration Guidelines are published in English and seek to provide best practice procedural guidance on the conduct of an arbitration process to arbitrators and parties alike. The Arbitration Guidelines are a soft-law instrument that does not produce any binding effect, neither on the parties nor on the arbitral tribunal, unless agreed otherwise. In this sense, the parties are free to contract into the provisions of the Guidelines wholesale or only in part. In a further alternative, the parties may agree to the application of the Guidelines or portions thereof by way of guidance to the tribunal only. In this sense, the overarching objective of the Guidelines is to “provide parties and tribunals with a set of innovative best practice procedures to assist in bringing greater certainty and efficiency to the arbitral process, while ensuring fairness, equality and due process” (see Introduction to the Guidelines).

With this objective in mind, parties (including their legal counsel) and tribunals are encouraged to adapt the Guidelines to their own specific procedural needs. The Guidelines are drafted in a way that renders their application suitable in both an ad hoc and institutional context, avoiding (to the greatest extent possible) any undesirable overlap with existing institutional rules. They also accommodate a healthy mix of procedural rules from both the common law and the civil law legal traditions, in order to make them fit for use in international arbitration more generally (irrespective of the parties’ and the tribunal’s legal background). To facilitate the adaptation and ultimate use of the Guidelines in practice, a Word-version is made available in soft copy (possibly on the ADGMAC website portal) for adaptation by parties and tribunals.

The Guidelines are divided into a total of six so-called modules. Each module deals with one particular key procedural aspect of an arbitration procedure. Module 1 provides procedural guidance on the content and format of written submissions, the identification of the relevant issues that require determination in the arbitration by establishing a list of factual and legal issues that arise from claims or counterclaims, the potential bifurcation of the arbitration according to preliminary (most probably jurisdictional) and merits issues, liability and quantum, or any other issues depending on the precise nature of the parties’ dispute. Module 1 also discusses the procedure to be followed by a party in order to make an application to the tribunal on a point of procedure, allowing direct applications to the tribunal in circumstances that require urgent interim relief, otherwise emphasising the preference for party agreement.

Module 2 addresses the issue of fact witness evidence, providing detailed guidance on the content and format of fact witness statements. This module also advises on oral testimony tendered by fact witnesses at an evidentiary hearing. Importantly, under the Guidelines, a tribunal is empowered to exclude a witness from testifying at a hearing where the testimony is irrelevant to the issues in dispute between the parties. The tribunal is also allowed to disregard witness evidence in the event that the witness concerned is not called to testify by the party relying upon that witness’s evidence. This is, of course, of particular relevance to the limited role played by witnesses in the civil law tradition, where witnesses should only be called to testify with respect to matters that cannot be conclusively proven by reference to documentary evidence. Module 3 deals with the submission of expert witness evidence mutatis mutandis, including evidence tendered by tribunal-appointed experts.

Module 4 moves on to discuss production of documents. Importantly, for this purpose, the term “document” is given a wide meaning to include “a writing, communication, picture, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means.” The document production exercise is contemplated to proceed by reference to the Redfern Schedule and is largely inspired by the IBA Rules on the Taking of Evidence in International Arbitration. A failure to produce a document pursuant to a tribunal order will allow the tribunal to draw adverse inferences or impose such other sanctions as appropriate, including taking such failure into account in the final allocation of costs.

Module 5 addresses the conduct of hearings, including case management conferences and merits hearings, from pre-hearing directions to hearing logistics.

Module 6 deals with counsel conduct, taking counsel to mean both legal and non-legal representatives. Most importantly, party representatives are not allowed to mislead the tribunal on matters of law and evidence. Party representatives are expressly permitted to assist in the drafting of fact and expert witness statements, as well as prepare witnesses for hearings. The Guidelines also introduce a complaints procedure in the event that a party representative acts in breach of the requirements set out in Module 6.

The ADGMAC has done well on taking the initiative to produce the Arbitration Guidelines. The Guidelines are the first soft law instrument of its kind of Middle Eastern origin. As such, they demonstrate that judicial-free zones, such as the ADGM, have a valuable contribution to make to the further development and evolution of the practice of arbitration in the Middle East. That said, it is acknowledged that the ADGMAC’s ambition might go beyond serving the process of arbitration in the Middle East, seeking to serve arbitrating parties internationally. For the avoidance of doubt, the ADGMAC must not be mistaken for a full-blown arbitration institution. It essentially serves as an arbitration venue that makes available to parties (whether local or international) 21st century hearing facilities in the heart of the ADGM, the offshore judicial-free zone located in the emirate of Abu Dhabi. The Guidelines prove that the ADGMAC understands itself as more than just a logistics provider for international arbitration and endeavours to promote the practice of international arbitration in more than one way.

Time will tell how the ADGMAC Arbitration Guidelines fare in practice. They are soft law hardcore and create a useful combination of common and civil law practices in arbitration. As such, they deserve to create traction beyond the boundaries of the ADGM.

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