Mohamed S Abdel Wahab
Office:
Nile City Building, South Tower, 8th floor
2005A Cornich El Nil, Ramlet Beaulac.
11221
City:
Cairo
Country:
Egypt
Tel:
+20 2 24612147
Fax:
+20 2 24612165

Questions and Answers:

Who's Who Legal Thought Leaders - Arbitration

Professor Dr Mohamed S Abdel Wahab is chair of private international law and professor international arbitration at Cairo University, and founding partner and head of international arbitration at Zulficar & Partners Law Firm. He is a vice president of the ICC International Court of Arbitration; vice president of the IBA Arbitration Committee; president of the LCIA Arab Users’ Council and the CIArb’s Egypt branch; associate fellow of the Centre of Private International Law at Aberdeen University; and fellow of the Center for Technology and Dispute Resolution, University of Massachusetts. He is a member of the CRCICA advisory committee; LCIA Court of Arbitration; CIMAC Court of Arbitration; AAA-ICDR international advisory committee; and CIArb’s board of management and practice and standards committee. He also received the 2018 ASA Prize for Advocacy in International Arbitration.

DO YOU PREFER SITTING AS SOLE ARBITRATOR, OR AS PART OF A PANEL?

I do both. I sit as sole arbitrator, and I also enjoy presiding over, or sitting as a member of, an arbitral tribunal.

HOW DOES ZULFICAR & PARTNERS REMAIN A LEADING FIRM FOR ARBITRATION IN A HIGHLY COMPETITIVE MARKET?

Zulficar & Partners is the premier dispute resolution practice in Egypt. The firm’s arbitration group is well known for its impressive and diverse portfolio of cases and its distinguished track record of success in representing its clients. The firm’s solid arbitration practice is very much in high demand and always aims to excel, to exceed clients’ expectations and to maintain its position as the number one destination for complex high-value disputes. The firm’s arbitration group is constantly expanding with a well-balanced gender diversity and a pledge to attract the best talents in the market.

Over the years, the firm has successfully prosecuted mega arbitral proceedings across the MENA region, Africa, Europe and beyond, and its significant caseload involves arbitral and cross-border litigation proceedings in jurisdictions across four continents, in countries including Austria, Egypt, England, France, Italy, Japan, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia, Singapore, Sudan, Sweden, Switzerland, Syria, Tunisia, the UAE and  the US.

The firm’s disputes practice has three partners and more than 30 associates, making it the largest disputes practice in Egypt. The firm’s unparalleled track record in the region includes prosecuting: the first mega telecommunications arbitration in Egypt, several ICSID and UNCITRAL investment arbitrations, as well construction arbitrations worth several hundred million dollars in Egypt, Kuwait, Oman, Qatar, and Syria.

The firm remains the leading arbitration practice in a highly competitive jurisdiction by attracting the best talent available, providing bespoke services tailored to its clients’ needs, excelling in strategic dispute management, exhibiting solid and profound understanding of the law and business aspects of the dispute, and offering unparalleled expertise and out-of-the-box solutions to intricate legal issues at challenging times. Client testimonials confirm this. According to the legal director of a telecommunications company, Zulficar & Partners is “one of the best firms we have dealt with worldwide” and it was praised for its “management of expectations, responsiveness and industry knowledge”.

INVESTOR-STATE ARBITRATION HAS RECENTLY BEEN THE TARGET OF SEVERAL ACCUSATIONS RELATING TO A LACK OF TRANSPARENCY. WHAT STEPS CAN BE TAKEN TO ADDRESS THESE ISSUES?

The ISDS landscape is changing and is facing some unprecedented challenges. For example, on 6 March 2018, the Grand Chamber of the ECJ rendered its long-awaited decision in Slovakia v Achmea (C-284/16), where the ECJ ruled that ISDS provision in the Czech Republic-Netherlands BIT was not compatible with the EU treaties and in particular with articles 344, 267 and 183 of the TFEU, and that the autonomy of the EU judicial system, whose observance the ECJ assures, was the ECJ’s most paramount concern. The ECJ then set out three reasons why it considered that intra-EU ISDS was incompatible with EU law. First, it held that investor-state arbitral tribunals, constituted pursuant to an intra-EU BIT, were called upon to interpret and apply EU law. Second, it held that arbitral tribunals are not courts or tribunals “of a member state” pursuant to article 267 TFEU and therefore cannot refer questions of interpretation and application of EU law to the ECJ. Third, the ECJ held that it was not sufficient, for the purposes of safeguarding the unity and coherence of EU law, that the courts of the law of the seat could refer a preliminary question to the ECJ during annulment or enforcement proceedings. The ECJ was also concerned by the limited nature of the grounds of challenge to investor-state awards, and so by signing an intra-EU BIT, member states had effectively consented to remove from the jurisdiction of their national courts certain disputes that could require the application and interpretation of EU law and, accordingly, avoid the system of judicial remedies that all member states are obliged to establish in areas covered by EU law pursuant to article 19(1) of the Treaty of the European Union. This was not acceptable to the ECJ, which made no reference whatsoever to the principle of subsidiarity, perhaps because the need for consistency and uniformity in the operation of the autonomous legal order of the EU was perceived to override any other considerations.

Now, whether the international and regional waves of change that are sweeping across the ISDS system qualify as an “interim flash” or amount to a “global backlash”, this remains to be seen. However, I am of the view that while changes are needed, surely the answer to any shortcomings of the existing ISDS system lies not in the creation of a state-centric and/or state-constituted investment courts. While many speak of system “reform”, it seems that the aim is really “reformation” and “reconfiguration”. It is submitted that major steps have been taken to promote transparency and efficiency, but the success of the ISDS system necessitates more predictability and neutrality, and it must be founded on the balanced perception of its users, so that it is neither state-centric nor investor-oriented. System neutrality boosts legitimacy, confidence and trust, and is a guaranteed recipe for success. It is in our collective best interests to stabilise the ISDS system, dispense with any shortcomings thereof, maintain its independence from state and/or investor influences, and ensure that the proper rule of law governs and prevails.

ARE EXPEDITED PROCEDURES ALWAYS A MORE EFFECTIVE WAY OF CONDUCTING ARBITRATIONS?

It is indeed ironic that arbitration, which was initially showcased as a cure to delays in court proceedings, is now exhibiting the very same symptoms of the delay illness it was destined to cure. Obviously, expedited procedures will not be the most effective means to conduct arbitrations in each and every case. In fact, “expedited” and “effective” are relative terms that must be considered in their proper context. It is no secret that the system of international arbitration, as is the case with successful systems, is subject to multi-layered criticisms, including unwarranted delay in conducting arbitral proceedings.

While expedited proceedings remain, hitherto, globally confined to claims of relatively low-monetary value, it is submitted that there exists no causation or even correlation between low-value claims and the suitability of the dispute to be decided expeditiously. Efficiency, effectiveness and expediency are relative, and their continuation varies depending on the nature of the dispute and the reasonable expectations of the parties.

In an era of competitive institutional competition, arbitral institutions are competing to cater for the needs of the users, and delay is constantly flagged as a continuing concern. Thus, the success of expedited proceedings will mark a glittering future path for arbitration. With the advent of technology and its integration in dispute resolution processes, it is expected that expedited proceedings will in the not-too-distant future find their way to govern high-value claims. I submit that expedited proceedings will, in the not-too-distant future, move from a “pilot mode” to a “normative code”.

HAS THE TIME COME FOR A BINDING CODE OF ETHICS ON THE CONDUCT OF ADVOCATES AND COUNSEL IN ARBITRATION?

I guess ethical conduct of counsel in arbitration is among the hot topics of international arbitration and will remain so for some years to come. The issues are twofold. First, there are different standards of professional conduct and counsel obligations. This is well beyond the civil-common law divide, as jurisdiction-specific anomalies and peculiarities manifest themselves in arbitral proceedings. Second, exceptionally, unethical conduct and behaviour can go unsanctioned other than in a costs award, which really then impacts the party more than counsel.

The problem is that such varying degrees of professional conduct and challenging unethical behaviour cause system instabilities and may even raise legitimacy concerns at the tumultuous times we are witnessing and so a truly global response is much needed. Without prejudice to local or regional peculiarities and diversities, there must be a common denominator: a set of principles that bind all, so that due process and even-handedness are properly observed and measured by objective criteria rather than subjective specificities that are seat-dependent or jurisdiction-oriented.

It is in this spirit that the IBA, being an instrumental organisation in developing soft law instruments that played a key role in harmonising practices in international arbitration, issued their 2013 Guidelines on Party Representation in International Arbitration in an attempt to streamline and codify a set of common principles that govern party representation in arbitral proceedings. One year later, the LCIA equally recognised the need to intervene and set out some prevailing principles of conduct. The LCIA annexed their guidelines on counsel conduct to the 2014 Rules. The guidelines aimed at promoting the good and equal conduct of the parties’ legal representatives and contained five relatively short paragraphs about what legal representatives should (or rather should not) do in international arbitration proceedings under the LCIA Rules. This included not to: unfairly obstruct the arbitration or jeopardise the award; knowingly make any false statements; procure or assist in the preparation of, or reply upon, any false evidence; conceal or assist in the concealment of any document; or enter into ex parte communications with the tribunal or members of the LCIA Court involved in making any decision regarding the arbitration.

The ICC has also made, under section IV of their Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, express reference to the fact that parties and their representatives are expected to: abide by the highest standards of integrity and honesty; conduct themselves with honour, courtesy and professionalism; encourage all other participants in the arbitral proceedings to do the same; and draw inspiration from and, where appropriate, adopt the IBA Guidelines on Party Representation in International Arbitration.

These are all welcome efforts, but more is needed to transpose ethics and professional conduct from the realm of “non-binding guidelines” to the world of “binding obligations”, only to the extent necessary to support the legitimacy, integrity, efficiency, even-handedness and propriety of the arbitral process. Additionally, if we believe that the process is as good as those who practice, then we need to boost professional ethics for counsel to dispense with any scepticism or mistrust in the process itself. Perhaps we need to start introducing core courses on ethics, notably professional ethics, in undergraduate programmes at universities across the globe.

THE DIGITALISATION OF ARBITRATION IS A PERVASIVE ISSUE AT THE MOMENT. HOW CAN ARBITRATORS STAY AHEAD OF THE CURVE AND USE THIS CHANGE TO THEIR ADVANTAGE?

The digitalisation or use of ICTs in arbitration is indeed topical and pervasive. Owing to the ICT revolution, well-established principles of arbitration are being reconsidered and reconfigured. Having advocated for use of technology in arbitration and online dispute resolution (ODR) since 2001, I believe that integrating technology in arbitration proceedings is inevitable. As Marshall McLuhan wrote in Understanding Media (McGraw Hill, 1964, p.161), “Once a new technology comes into a social milieu it cannot cease to permeate that milieu until every institution is saturated.”

The digitalisation of arbitration largely depends on the role technology plays and the balance between the human factor and the artificial intelligence element in the process. On a sliding scale, proceedings could be grouped into two broad categories. First, technology-assisted arbitration proceedings, where the role of technology is limited to the provision of an adequate and secure medium of communication and information exchange, and/or utilising software and ICT applications, to specific aspects of the arbitral proceedings to assist the parties and arbitrators. Second, technology-based arbitration proceedings, where a fully-fledged application of cutting-edge technology could be used to resolve disputes and render decisions. We are already witnessing the impact of introducing predictive justice and blockchain technologies, to name a few, to the world of international arbitration.  

Arbitrators who aspire to stay in the game need to keep up with technological developments and stay ahead of the curve by familiarising themselves with new technologies, their potential use in arbitral proceedings and the basics of staying safe and secure online when interacting digitally, by mitigating and minimising the risks associated with the use of ICT applications and new technologies through encryption technologies, firewalls and passwords, as well as privacy enhancing technologies. This will not only offer arbitrators a much-needed edge when conducting proceedings, issuing orders and awards, but also when ruling on technology-related disputes.

On a separate note, while the human nature of arbitrators was never challenged or brought into question, artificial intelligence applications are now threatening this key element in the arbitral process. For the present generation, it may be a blessing that the world has not yet evolved to a stage where humans and AI forms are integrated, but the future beholds such possibility.

SEVERAL JURISDICTIONS IN AFRICA ARE TAKING GREAT STRIDES TOWARDS BECOMING FAVOURABLE PLACES TO CONDUCT ARBITRATIONS. WHAT IS NEEDED TO ACHIEVE THIS?

The progressive FDI inflows into Africa and the normative consciousness of the importance of diversity in international arbitration have led to diverting considerable attention to the African continent, as a “promised land” for international arbitration. The past, present and future all confirm that Africa is more than equipped to positively contribute to the development of truly global principles of international arbitration. With this undisputed attention to Africa, several arbitral institutions and migrating seats have been established in leading African hubs of arbitration – Egypt, Kenya, Mauritius, Morocco, Nigeria and South Africa, to name a few. Moreover, Model Law-based national arbitration laws are proliferating across Africa and judiciaries are exceedingly showing support to international arbitration, but more training, awareness, and better understanding of the intricacies of international arbitration are needed.

By and large, while Africa is yet to fulfil its true potential, it can be said that the richness and diversity of African cultures, and the relative openness to sophisticated processes of cross-continental interaction, have offered Africa new windows on the world – windows through which African and foreign practitioners can interact locally and globally. This symbiotic interaction can indeed lead to intensified processes of cross-fertilisation, and Africa has an abundance of arbitration talent.

This undoubtedly necessitates the existence of safe arbitral seats within the continent. In this regard, the 2015 Chartered Institute of Arbitrators’ principles for an effective, efficient and safe seat for the conduct of international arbitration can offer useful guidance for African states aspiring to claim a worthy position among leading global seats of arbitration. In summary, the 10 principles for an efficient and effective seat are the following: the enactment of a clear and modern arbitration law in compliance with international standards; an independent, experienced and arbitration-friendly judiciary; legal professionals experienced in international arbitration; the development of learning in the field; a clear right for parties to be represented in arbitration by representatives of their choice whether from inside or outside the seat; easy accessibility, adequate safety and protection for parties, their documentation and information; the provision of all services required to run effective and efficient arbitral proceedings; readiness to embrace a diversity of legal and cultural traditions and developing norms of international ethical principles governing the behaviour of arbitrators and party representatives; adherence to international treaties concerning recognition and enforcement of foreign arbitral awards made at the seat of arbitration in other countries; and a clear right to arbitrator immunity from liability for acts or omissions undertaken in good faith when acting as arbitrator.

Some African countries have already taken significant steps to position themselves as “safe” seats for arbitration. These include: Egypt, Kenya, Mauritius, Morocco, Nigeria, South Africa and Tunisia, which have appreciated the importance of positioning themselves as arbitration hubs and are indeed recognised as leading African jurisdictions when it comes to arbitration. Given the increase in African states attempting to offer a “safe” seat for arbitration, there appears to be a “venue-isation” phenomenon, where we are witnessing notable increases in the number of arbitral institutions established in Africa and in the number of African parties involved in arbitration cases.

WHAT DO YOU CONSIDER YOUR MOST SIGNIFICANT ACHIEVEMENT AS HEAD OF THE INTERNATIONAL ARBITRATION PRACTICE SO FAR?

Honestly speaking, one’s achievements are not simply measured by sheer personal successes or acknowledgements, but by the contributions made institutionally and to the lives of others. That said, I do consider that repositioning our firm as a world-class leading arbitration practice and building its arbitration group, with 24-plus members, is my most valued achievement. Helping to build the next generation of talented practitioners is indeed a significantly overwhelming achievement. Also, receiving the 2017 GAR award for the best Mediterranean/ North African Arbitration Practice, as well as the 2018 ASA Prize for Advocacy in International Arbitration, testifies to the great success of each and every member of our arbitration group of whom I am truly proud and for whom I am profoundly grateful.

These achievements confirm that it matters not where we are based, for it is what we do that counts and makes a difference.

Biography:

Who's Who Legal Arbitration: Lawyers

Professor Dr Mohamed S Abdel Wahab is the chair of private international law and professor of dispute resolution at Cairo University; founding partner and head of international arbitration at Zulficar & Partners Law Firm; vice president of the ICC International Court of Arbitration; court member of the LCIA; president of the LCIA’s Arab users’ council; vice chair, IBA arbitration committee; member of the ICDR/AAA international advisory committee; member of the CIMAC court of arbitration; member of the SIAC’s African users’ council; member of the CRCICA’s advisory committee; vice president of the CIArb’s Egypt branch; member of the CIArb’s practice and standards committee; member of the ICCA and the ICCA-QMUL third-party funding task force; member of the international experts group of the Permanent Forum of China Construction Law; fellow of the NCTDR, USA, associate fellow of the Private International Law Centre at Aberdeen University; a CEDR-accredited mediator; and dispute resolution consultant to the World Bank Group.

Professor Dr Abdel Wahab is recognised as a world leading expert on international arbitration, Egyptian and Arab laws, Islamic sharia, and online dispute resolution. He holds over 55 prizes for academic achievement, and is regularly published in learned international journals on issues of private international law, international commercial investment arbitration, construction law and practice, and project finance. He regularly speaks at national and international conferences on international commercial and investment arbitration, telecommunications law, construction law and practice, oil and gas, project finance, online dispute resolution, and private international law.

Professor Dr Abdel Wahab’s expertise in cross-border multi-jurisdictional and highly complex transactions and disputes is versatile and apt. He 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, as well as the general principles of law. He has broad and extensive experience of commercial and investment arbitration and expert determination proceedings across the economic and business spectra.

Professor Dr Abdel Wahab features in Who’s Who Legal: Arbitration as a star arbitration practitioner, and also in the GAR Global Guide for Future Leaders in International Arbitration (2017). Chambers & Partners Global (2017) ranks him as the only star individual in Egypt.

Professor Dr Abdel Wahab is listed on the rosters of many arbitral institutions including CRCICA, DIAC, BCDR-AAA, the European Mediation and Arbitration Organisation (Athens), KLRCA, VIAC, Russian Institute of Modern Arbitration and CIETAC, and has served 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.

Professor Dr Abdel Wahab featured in cases under the auspices of the AAA, CRCICA, DIAC, DIFC-LCIA, ICC, ICSID, LCIA, LMAA, SCC, SIAC, as well as ad hoc UNCITRAL proceedings. Throughout his appointments as arbitrator or counsel, he has acted in cases worth several hundred million dollars in the telecommunications, construction, oil and gas, investment, hotel management, transport, insurance, and financial sectors. He has also acted in mega disputes involving state and state-owned entities from different countries.

Owing to Professor Dr Abdel Wahab’s academic and professional background, he has also served as legal expert in more than 23 cases. In this capacity he has advised on aspects of English, Egyptian, Emirati, Bahraini, Omani, Libyan, Kuwaiti, Qatari and Saudi laws in relation to issues of conflict of laws, contract law, international jurisdiction, construction law, telecommunications, hotel management, Islamic sharia, project finance, administrative, commercial and civil laws, and insurance.

WWL says: Mohamed Abdel Wahab is described as "one of the best practitioners in the world today" thanks to his "sharp mind and excellent legal knowledge".

This biography is an extract from Who's Who Legal: Arbitration which can be purchased from our Shop.

Follow us on LinkedIn

Practice Areas

Firms

Browse Firms

Search Firms

The Who's Who Legal 100

Awards

News & Features

Special Reports

Events

Shop

About Us

It is not possible to buy entry into any Who's Who Legal publication

Nominees have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide. Only specialists who have met independent international research criteria are listed.

Copyright © 2018 Law Business Research Ltd. All rights reserved. | http://www.lbresearch.com

87 Lancaster Road, London, W11 1QQ, UK | Tel: +44 20 7908 1180 / Fax: +44 207 229 6910

http://www.whoswholegal.com | editorial@whoswholegal.com

Law Business Research Ltd

87 Lancaster Road, London
W11 1QQ, UK