The three things I found most challenging when entering arbitration practice were the indispensability of having an edge and unique areas of expertise; making the right choices about the cases to work on and the people to work with; and being liberated from the shackles of profiling, as an African and Arab practitioner, to be able to break through into the world of international arbitration.

What are the primary differences between investment and commercial arbitrations, and what skills are key for success in said proceedings?

Investment and commercial arbitration proceedings do have some commonalities, but they remain different creatures. Books could be written on the nuances and differences between commercial and investment arbitrations. Simply put, they, inter alia, differ in terms of the applicable legal framework and norms; jurisdiction-related issues; case management techniques; tribunals’ and counsel’s approach to legal issues; and their impact on perceptions towards investment policies. Among the key skills to succeed in these proceedings are: the ability to choose the most suitable arbitrator for the particular set of proceedings; mastery of international law when it comes to investment arbitration and adequately addressing issues of the applicable laws in both commercial and investment arbitration; in-depth knowledge of the facts; the ability to read arbitral tribunals’ reactions, and to adapt and react accordingly; the ability to distil the core issues in dispute and to furnish tribunals with helpful submissions; maintaining credibility as counsel, neutrality as tribunal and sensibility as parties; and the careful articulation of the relief sought and avoiding frivolous applications.

The African, Latin American and Asian markets continue to see an increasing amount of construction disputes going to arbitration. What is driving this trend? What impact is it having on your practice?

Africa and Latin America are indeed witnessing an increase in construction disputes and this is simply a function of the upsurge in construction projects and development activities in both markets. Law firms with an interest in both markets have to tailor their services to adapt to the needs of both markets and we are no exception. Our construction arbitration practice is very solid, and is continuously evolving and hiring talented practitioners to cater for the needs of our clients with projects in many countries across Africa and Latin America.

How has your experience with comparative law and applicable law issues in arbitrations enhanced your practice?

My expertise in private international law has had a profound, positive impact on dealing with all legal issues, including applicable law questions that arise in construction, oil and gas, telecommunications, insurance and finance-related disputes. Mastering comparative law and applicable law issues gives one an edge and enables drawing parallels from other legal systems as appropriate. This is undoubtedly important when considering issues of fact and law. Moreover, this expertise offers a unique perspective and an edge when prosecuting cases or rendering arbitral awards; it allows one to appreciate the commonalities and differences between legal systems without being biased or wedded to a specific jurisdiction or system.

What do clients look for when selecting arbitration counsel?

Clients select counsel to win. However, seasoned and sophisticated clients aim to win in style. They select a counsel who is a capable and experienced strategist; is sharp, ethical and responsive; understands clients’ business and dispute-related needs; offers candid and honest advice; and is a team player, as well as being pleasant, efficient and effective.

An increasingly hot topic in arbitration at the moment is the use of AI in proceedings. What impact is this technology having on arbitration practice?

Technology is not simply having an impact on the practice of arbitration; it is transforming it. ICTs are no longer confined to offering virtual media for communications; they are having an impact on every aspect of the arbitration process from conclusion of contracts (and arbitration agreements) to commencement and prosecution of proceedings, and from document management techniques to rendering arbitral awards. The era of AI and its applications in smart contracts, automated agents and predictive justice has arrived. Moreover, online (virtual) platforms are deployed and created much more frequently than before and the movement to a wholly automated arbitration process is gaining momentum. This will undoubtedly require us to rethink existing principles and practices, and data protection, processing and security are now at the forefront of issues to be considered. Furthermore, predictive justice applications, and the use of AI and multivariable resolution optimisation programmes and potentially electronic exequaturs, will play a greater role in the decision-making process and enforcement of arbitral awards.

What impact has your membership of, and various roles within, a number of international arbitration institutions had on your perspective and knowledge as an arbitration specialist?

My membership of, and various roles within, arbitral institutions and professional organisations have had an extremely positive impact on my practice, perception and knowledge. This has been (and continues to be) a very rewarding and enriching experience, which I wholeheartedly appreciate and cherish as arbitrator and counsel. I have learnt a lot and I have come to know how institutions function. This has given me a unique opportunity to interact and exchange experiences with leading scholars and practitioners from across the globe; participate in institutional decision-making; contribute to the drafting of arbitration rules; and enhance my knowledge of comparative law and best practices in dispute resolution.

What advice would you give to someone looking to start their own firm?

Starting a new firm is a prodigious task. If you are up for it and have what it takes, then go ahead, but be smart in carefully considering market forces, trends and competition.

I invite you to consider the following questions. Why do you need to start a firm? What is your vision? What are your short- and long-term plans? What edge or expertise would this firm bring to the market? What resources (human, financial and legal) are you able to allocate or amass? How much time can you devote to establishing, managing and building the practice? Do you have the client base needed to start? Do you have the requisite legal knowledge, expertise and experience to build clients’ trust and confidence?

It is only upon careful consideration of the above questions can one decide whether starting a new firm is a sound decision or not. I would also caution that, first, continuity and growth are the biggest challenges to new firms; and second, one does not need to establish his or her own firm to build a name or be appreciated professionally. One can still be part of a successful firm and practice, and be recognised as a go-to professional whose name adds much value to the firm and its practice.

Thought Leaders - Construction 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Mohamed Abdel Wahab is “very experienced” in construction disputes. He is hailed as “the leading commercial arbitrator in Egypt and arguably the MENA region”.

Questions & Answers

Chair of private international law and professor of International Arbitration at Cairo University; Founding Partner and Head of International Arbitration at Zulficar & Partners Law Firm; Vice President of the ICC International Court of Arbitration; Member of the ICCA Governing Board; Dean of the African Arbitration Academy; Member of the Advisory Committee of the CRCICA; Member of the CIMAC Court of Arbitration; Member of the Advisory Board, MIAC. International Expert Member of the Permanent Forum of China Construction Law – China. African, Asian, Canadian, European, Middle Eastern and US parties.
What did you find most challenging about entering the field of construction arbitration?
Construction arbitration is a fascinating field that is not for the faint-hearted. Amongst the most challenging aspects of starting out in the area is competition because the construction field is not exclusive to legal practitioners, but many competent and capable engineers are amongst the top practitioners and arbitrators in the field. So, one must possess special skills, expertise and intellect to break through.
What makes an effective construction arbitration specialist?
To be an effective construction arbitration specialist, one must (a) understand the reality and specificities of the construction business, industry and the specific project in dispute; (b) have the necessary skills to patiently and meticulously review the very often voluminous documentation and submissions; (c) possess the ability and intellect to distill the core issues in dispute; (d) be good with numbers and have good understanding of the diverse delay analyses methodologies and approaches to quantum calculation; and (e) be capable of developing effective and innovative strategies to control time and costs as necessary.
If you could implement one reform in international arbitration, what would it be?
Rethinking the traditional approach to prosecuting arbitration proceedings and integrating more innovative technologies as support tools into the process.
What measures can be taken to reduce time and costs of construction disputes?
Construction projects and contracts are inherently dispute oriented. However, there are several measures that can be considered and implemented, on a case-by-case basis, to reduce time and costs of prosecuting construction arbitrations, these include: (a) ensuring that the parties’ delay, industry and quantum experts engage in meaningful discussions (early on in the case) to agree methodologies, approaches and identify areas of potential disagreement, so that the experts’ reports are aligned and comparable; (b) controlling the number and rounds of written submissions and considering whether pre-hearing submissions are necessary or not; (c) providing tribunal feedback on issues after the first round of submissions to focus the second round on what is necessary and productive; (d) considering whether hot-tubbing of experts could help reduce areas of disagreement; (e) being selective and efficient in cross examining witnesses; and (f) instruct competent, experienced and efficient counsel and appoint efficient arbitrators.
How do you see virtual hearings and remote working being implemented going forward? How will this impact construction disputes?
Virtual hearings and remote working have become temporarily normative amidst the covid-19 crisis while lock-down or curfew restrictions were in place, which adversely affected people’s mobility and made it impossible to commute or hold physical hearings. Owing to the covid-19 crisis, people have now experienced the possibility of virtual hearings that were previously not an option to many. Going forward, I believe that virtual hearings will continue to be a tabled option to consider as and when warranted (not only in times of crisis, but as a workable tool to reduce time and cost in proceedings). An interesting development that may occur is that virtual hearings could in some cases become the default option, whereby a party may need to justify why a physical hearing would be desired. Personally, I predict that we shall witness a rise in the number of hybrid hearings in complex cases, whereby a mix of virtual and physical hearings on the merits will take place in the same set of proceedings. I also predict that the longer the period during which physical (non-virtual) hearings cannot take place, the more receptive people would be to virtual hearings and the more likely virtual hearings will become conventional.
Also, flexible options of remote working will likely continue to co-exist with physical presence in offices, though many firms are already seriously considering reductions in office space owing to the fact that remote working has proven to be efficient to a large extent.
With respect to the impact on construction disputes, construction arbitrations are not immune to virtual hearings, but parties, counsel and tribunals will need to assess, on a case-by-case basis, whether in light of the applicable norms and the case-specific prevailing circumstances virtual hearings are an acceptable option, especially given that mega construction arbitrations commonly involve voluminous documentation and extensive cross-examination of fact and expert witnesses.
How does the Abdel Wahab Pandemic Pathway to Virtual Hearing Considerations help parties, counsel and tribunals?
Since March 2020, parties, counsel, arbitrators and institutions have explored options regarding the efficient conduct of arbitral proceedings and mitigating the effects of the covid-19 pandemic. Despite the wealth of available resources, a roadmap or a pathway, setting out the diverse legal issues that ought to be considered when assessing whether to proceed with a virtual hearing or not, was still missing. It is in this context that the Abdel Wahab Pandemic Pathway (published by GAR on 6 May 2020) offered a step-by-step analysis of the issues to consider.
In brief, the Abdel Wahab Pathway provides the following four-step analysis:
First, if the applicable lex loci arbitri or the governing procedural rules (including any institutional rules) (i) expressly refer to “in person” hearings on the merits, and (ii) if “in person” (under these rules/laws) unequivocally means “physical appearance”, then virtual hearings may not take place without the parties’ consent, otherwise the risk of setting aside actions or vacatur motions would be high.
Second, if the applicable lex loci arbitri or the governing procedural rules (including any institutional rules) expressly refer to the possible use of technology or virtual hearings, then there is no issue and the arbitral tribunal can proceed virtually, as it deems fit after careful consideration of the circumstances and the ability of the parties to reasonably present their cases. No consent would be required from the parties, unless the parties have agreed otherwise or opted out of such provisions (assuming opting out therefrom is permissible). By way of illustration, Articles 33(3) of the UAE Federal Arbitration Law No.6 of 2018 and 27(b) of the Jordanian Arbitration Law No. 31 of 2001 as amended by Laws No.16 and 41 of 2018 provide for express references to the possible use of new information and communications technologies.
Third, if the applicable lex loci arbitri or the governing procedural rules (including any institutional rules) are silent on the issue of virtual hearings and no direct inference can be made, then there exist two possible legal approaches: (i) the absence of a permissive provision to proceed virtually implies that the arbitral tribunal cannot proceed with a virtual hearing without the parties’ consent; or (ii) the absence of a prohibitive provision to proceed virtually implies that the arbitral tribunal has the discretion to consider the matter and proceed with a virtual hearing without the parties’ consent, if it deems it appropriate. Under this specific step, arbitral tribunals will need to consider and assess the following factors:
(a) whether the applicable law/rules include an express provision giving the arbitral tribunal the power to manage and determine the procedural path of the proceeding as it deems appropriate;
(b) whether the applicable law/rules refer to the parties’ “full” or “reasonable” opportunity to present their case, and whether both terms have different legal implications or connotations under the applicable law/rules;
(c) whether the parties have access to technology, reliable technology and/or cutting-edge technology, noting that access to varying degrees of technology is not, in and of itself, prohibitive of virtual hearings (but ought to be considered in the specific context of the case);
(d) whether the applicable legal principle under the lex loci arbitri is “absent a prohibition, the matter is considered permissible” or whether “permissibility requires an express provision”, noting that most legal systems consider that a matter is generally permissible unless prohibited;
(e) whether the applicable law or rules consider hearings a mandatory requirement (or a must if requested by a party), or whether arbitral tribunals have broad powers to proceed in the manner they deem appropriate including proceeding on the basis of documents only or through other means (which would naturally include virtual means), insofar as due process is safeguarded without undue paranoia;
(f) whether one or more parties object to the virtual hearing and for what reasons;
(g) whether any terms of reference or practice direction was agreed and included constraints on the arbitral tribunal’s power to proceed in certain matters without the parties’ consent;
(h) whether the proceedings are subject to strict time limits, such that the arbitral tribunal’s jurisdiction ratione temporis will expire (and cannot be extended) if the hearing is postponed and a hearing must take place, and a virtual hearing is the only option;
(i) whether the laws of evidence or civil procedures at the seat of arbitration apply to arbitration and recognize the possible utilization of ICTs;
(j) whether the circumstances of the case make it appropriate (for example, the participants’ access to reliable technology, the nature and volume of the evidence and the lack of any serious risk of prejudice); and
(k) whether, subject to any constraints under the applicable procedural rules/laws, the arbitral tribunal can resort to any soft law instruments that may define and ascertain the arbitral tribunal’s scope of powers, such as the International Law Association’s Resolution of 2016 on international commercial arbitration, which deals with arbitral tribunals’ inherent, implied and discretionary powers.
Fourth, if the applicable lex loci arbitri is inconsistent with the governing procedural rules (including any institutional rules) on this matter, then the way forward will depend on whether the rule under the lex loci arbitri is mandatory or non-mandatory.
In light of the covid-19 pandemic, do you expect that the practice of international arbitration will change over the next five years?
There is no doubt that covid-19 has changed perceptions and expectations, and to many it has presented a barren winter of despair. However, international arbitration has proven to be resilient, and, ever since March 2020, it has operated as a snow piercer through this snowing winter of despair. Institutions, counsel, tribunals and the overall international arbitration community have adapted quite well to the winds of change brought about by the covid-19 limitations. So, we are fortunate that our field and areas of practice were adaptive and responsive to the covid-19 changes, but prudence calls for innovation, evolution and preparedness for the future. That said, one would expect that over the next five years the practice of international arbitration will undergo significant changes, such that artificial intelligence and information and communication technologies will become integrated as support and facilitative tools for the resolution of disputes. Thus, we will all need to invest more time and energy in staying ahead of the game and in understanding the diverse technological applications that will impact the way we conduct proceedings. In fact, it is inevitable that there will be a rise in demand for more tech-savvy arbitrators and counsel, which will present better opportunities for new and diverse faces in international arbitration (a field that is destined for a glistening path of change).

Global Leader

Arbitration 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Mohamed Abdel Wahab "is at the top of the market" and "a very well-prepared, exceptional arbitrator".

Biography

Professor Dr Mohamed Abdel Wahab is the chair of private international law, and professor of international arbitration, at Cairo University; founding partner and head of international arbitration, construction, and oil and gas at Zulficar & Partners; vice president of the ICC International Court of Arbitration; vice chair of the IBA Arab Regional Forum; dean and member of the Africa Arbitration Academy’s advisory council; associate fellow of the Centre of Private International Law at Aberdeen University; and fellow of the Center for Technology and Dispute Resolution at the University of Massachusetts, and the Shanghai University of Political Science and Law. He is also a member of Africa Arbitration’s advisory council; the CIMAC Court of Arbitration; the AAA-ICDR’s international advisory committee; CIArb’s board of trustees; the CRCICA’s advisory committee; the ICODR’s governing board; Arbitrator Intelligence’s board of advisors; and the SIAC African Users’ Council committee. Former roles include member of the LCIA Court (2014–2019); president of LCIA’s Arab Users’ Council (2016–2018); and vice president of the IBA arbitration committee (2015–2018).

He is also an international expert member of the Permanent Forum of China Construction Law; and editorial board member of the ClArb’s Arbitration Journal, the IBA Journal of Construction Law International and the Journal of Enforcement of Arbitration Awards;

Professor Dr Abdel Wahab is recognised as a world-leading arbitrator and arbitration practitioner on international investment and commercial arbitration; international construction; telecommunications, and oil and gas disputes; Arab and African laws; Islamic shariah law; and online dispute resolution. He regularly publishes articles in on issues of private international law; international commercial and investment arbitration; construction law; oil and gas; and project finance. Professor Dr Abdel Wahab is listed on the rosters of many arbitral institutions including the ADCCAC (Abu Dhabi), AIAC (Malaysia), BCDR-AAA (Bahrain), CIETAC (China), CRCICA (Egypt), DIAC (Dubai), KCAB (South Korea), and the Arbitration Center of the Russian Institute of Modern Arbitration.

Professor Dr Abdel Wahab has served as sole arbitrator, presiding arbitrator, co-arbitrator, legal expert and counsel in more than 190 cases, including complex, high-value institutional and ad hoc arbitral proceedings involving parties from the Middle East, Europe, Asia, Canada and the US. He has featured in cases under the auspices of the AAA, AAA-BCDR, CRCICA, DIAC, DIFC-LCIA, ICC, ICSID, LCIA, LMAA, SCC and SIAC, as well as ad hoc UNCITRAL proceedings. . His expertise spans construction, oil and gas, telecommunications, finance, and hospitality disputes involving cross border multi-jurisdictional and highly complex contracts and transactions. He has featured in disputes governed by the laws of Bahrain, Egypt, England and Wales, France, Iraq, Jordan, Kuwait, Libya, Morocco, New York, Nigeria, Oman, Pakistan, Qatar, Saudi, Spain, Switzerland, Syria, Italy and the UAE, as well as the general principles of law.

Professor Dr Abdel Wahab has successfully negotiated, reviewed and drafted numerous construction contracts including design agreements, civil engineering works, turnkey contracts, contracts for mechanical works, etc, for both contractors and employers, and has handled high-value complex construction disputes and claims involving multiple parties in ad hoc and institutional contexts. His expertise spans disputes involving multiple and cross-claims; variation orders; concurrent delays; time extensions; liquidated damages; defects and completion certificates; force majeure; hardship; warranties; financing; insurance; and security.

He has taught construction law and practice courses, and has conducted trainings on FIDIC forms of contracts and disputes arising thereunder. Professor Dr Abdel Wahab has contributed to the GAR Guide to Construction Arbitration (2017 and 2018), and co-authored Practicing FIDIC in Civil Law Jurisdictions: Application of Time and Additional Payment Provisions (2018). He is recommended for construction disputes in Chambers and Partners (2016).

Professor Dr Abdel Wahab is regularly ranked as a world-leading dispute resolution practitioner in all leading legal directories. He features in I-ARB's list of 100 leading African arbitration practitioners; was named Africa Arbitration's first "African Personality of the Month" (June 2018); and was selected by the Lagos Chamber of Commerce International Arbitration Centre as its Arbitration Personality (May 2019). He won the ASA International Arbitration Advocacy Prize (2018); was nominated for the GAR Award for the Best Arbitration Lecture (2013, 2014 and 2018); and was voted the top legal practitioner of 2017 by Law magazine. He also accepted the GAR Award for Zulficar & Partners’ work as the leading North African and Mediterranean arbitration practice (2017).

In June 2019, Professor Dr Abdel Wahab received the AYA Hall of Fame Award for African Arbitrator of the Year. The leading treatise he co-edited, Online Dispute Resolution: Theory and Practice, received the 2013 CPR Award for Best Published Dispute Resolution Work.

Professor Dr Abdel Wahab is ranked as a Star Individual in Egypt by Chambers Global (2016–2019). He is also highly recommended by WWL: Construction (2017–2019) and The Legal 500 (2017–2019).

Construction 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Mohamed Abdel Wahab is "very experienced" in construction disputes. He is hailed as "the leading commercial arbitrator in Egypt and arguably the MENA region".

Biography

Professor Dr Abdel Wahab is chair of private international law and professor of international arbitration at Cairo University; vice president of the ICC International Court of Arbitration; member of the ICCA governing board; vice chair of the Academic Forum on Investor-State Dispute Settlement; vice chair of the IBA Arab regional forum; court member of the Casablanca International Mediation and Arbitration Centre; and dean and member of the Africa Arbitration Academy’s advisory council.

He is also a member of: the CRCICA advisory committee; the AAA-ICDR international advisory committee; the SIAC African Users’ Council committee; the CIArb board of trustees; Arbitrator Intelligence’s board of advisers; the International Council on Online Dispute Resolution’s governing board; and the Mauritius International Arbitration Centre’s advisory board.

Former roles include: court member of the LCIA (2014–2019); president of the LCIA’s Arab Users’ Council (2016–2018); and vice chair of the IBA arbitration committee (2015–2018).

Professor Dr Abdel Wahab is also: fellow of the National Center for Technology and Dispute Resolution at the University of Massachusetts in Amherst, USA; associate fellow of the Centre for Private International Law at Aberdeen University, UK; director of CIArb’s flagship international arbitration diploma at Oxford University; and international expert member of the Permanent Forum of China Construction Law.

Professor Dr Abdel Wahab regularly serves as arbitrator, expert and counsel in high-value construction disputes. He chairs arbitral tribunals in mega-construction-related proceedings. He has acted in construction claims, worth several hundred million dollars, in institutional and ad hoc arbitration proceedings in Egypt, Qatar, Kuwait, Oman, Saudi Arabia and the UK.

He has taught construction law and practice courses, and conducted training on FIDIC forms of contracts and disputes arising thereunder. He is the MENA-exclusive contributor to the Global Arbitration Review Guide on Construction Arbitration (2017–2019), and was named co-author of the monograph Practicing FIDIC in Civil Law Jurisdictions – Application of Time and Additional Payment Provisions (2018). Chambers and Partners acknowledges Professor Dr Abdel Wahab’s significant experience in construction disputes in its 2016 and 2020 editions. WWL: Construction (2019) calls Mohamed Abdel Wahab “a leading heavyweight construction law specialist whose analytical skills are second to none”.

Professor Dr Mohamed S Abdel Wahab has served as Arbitrator, counsel and expert in more than 195 cases involving parties from the Middle East, Europe, Asia, Canada and the USA. He has featured in cases under the auspices of the AAA, the AAA-BCDR, the CRCICA, the DIAC, the DIFC-LCIA, the ICC, ICSID, the LCIA, the LMAA, the SCC and SIAC, as well as ad hoc UNCITRAL proceedings, and those governed by the laws of Bahrain, Egypt, England, France, Jordan, Kuwait, Libya, Morocco, New York, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Spain, Sweden, Switzerland, Syria, Italy and the UAE, along with international law and the general principles of law.

Professor Dr Abdel Wahab is listed on the rosters of many arbitral institutions including the ADCCAC (Abu Dhabi), AIAC (Malaysia), BCDR-AAA (Bahrain), CIETAC (China), the CRCICA (Egypt), the DIAC (Dubai), the EODID (Athens), the KCAB (South Korea), the SCIA (China) and the Arbitration Centre of the Russian Institute of Modern Arbitration (Russia).

Professor Dr Abdel Wahab is recognised as a world-leading arbitrator and arbitration practitioner. He has featured in every edition of WWL Thought Leaders: International Arbitration (2017–2019), and is listed in all major legal directories as a leading practitioner, including WWL: Arbitration, WWL: Construction, WWL Future Leaders: Arbitration (2017) and WWL Thought Leaders: Construction (2019–2020).

Professor Dr Abdel Wahab features in I-Arb Africa’s list of 100 leading African arbitration practitioners. He was named by Africa Arbitration as Personality of the Month (June 2018) and by the Lagos Chamber of Commerce International Arbitration Centre as Arbitration Personality of the Month (May 2019). He is the winner of Law magazine’s 2017 Award for Best Egyptian Legal Practitioner; ASA International Arbitration’s 2018 Advocacy Prize; the Association of Young Arbitrators’ 2019 Hall of Fame Award for African Arbitrator of the year; and Lexology’s 2020 Client Choice International Award for Construction.

The Legal 500 (2019) describes Mohamed Abdel Wahab as “an arbitration expert with a global reputation” and “one of the best in the world”. WWL: Arbitration (2019) calls him “a leader in the space” who is “at the top of the market” and “a very well-prepared, exceptional arbitrator”. Chambers and Partners Global (2019) states, “Mohamed Abdel Wahab is consistently described by clients as a ‘superstar in arbitration’. He is praised as ‘a good strategic thinker’ and is acknowledged for his ‘deep understanding of the issues surrounding disputes in the construction and oil and gas sectors’.

Professor Dr Abdel Wahab read law in Egypt and the UK. He speaks Arabic, English and French.

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