AL-OBAIDLI 2016 Arbitration law in Qatar

457 Pages·2016·7.81 MB·English

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ARBITRATION LAW IN QATAR: THE WAY

FORWARD

Jassim Mohammed A. A. Al-Obaidli

A thesis submitted in partial fulfillment of
the requirements of the
Robert Gordon University
for the degree of Doctor of Philosophy

April 2016
Abstract

Arbitration law in Qatar: the way forward
Jassim Mohammed A. A. Al-Obaidli.
A thesis submitted in part fulfillment of the requirements of the Robert Gordon
University for the degree of Doctor of Philosophy

Qatar is among the fastest growing developing countries in all fields. Since the
State of Qatar gained independence from the United Kingdom, the Qatari
government has been focusing on the formation of state institutions to keep pace
with global development. In 1971, Qatar released the first civil and commercial
law. The country established the first step towards the separation of civil and
commercial transactions of Islamic law. However, the ever-changing nature of
business and global economy requires significant economic and societal changes.
With the increase of foreign investors in Qatar, there had to be a law governing
arbitration in contracts. Therefore, the government promulgated the arbitration
clause in commercial contracts; the first code of civil and commercial procedure
contains a chapter of the arbitration. However, the provisions of arbitration
included in this law are not compatible with the UNCITRAL Model Law. Although
there is a shortage in literature regarding arbitration in Qatar, several studies
discussed issues related to arbitration in Qatar and called for the adoption of a
new separate arbitration law in Qatar compatible with the UNCITRAL one. This
prompted Qatar to work on a new draft law of arbitration, especially after the
ratification of the New York Convention 1985 by Qatar. However, these studies
did not cover other factors which affect arbitration; such as cultural attitude
towards arbitration and issues affecting the practice of arbitration in Qatar.
Unlike previous studies regarding arbitration in Qatar, this thesis uses multi-
methods to get an answer of the main question of the research, which is: “Will
the new Arbitration Draft Law solve all the issues related to arbitration in Qatar,
thereby attracting international companies to Qatar and its law for their
arbitration?”
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The thesis reviews the related literature in the first stage. Then it analyses
interviews which were held with a number of arbitration stakeholders, the recent
Qatari draft law of arbitration, the GCC unified arbitration draft law and the Qatar
Financial Centre (QFC) draft law. After that it conducts a comparison between
the current provisions of arbitration, the Qatari arbitration draft law and the GCC
unified arbitration draft law in light of the UNCITRAL Model Law and the Egyptian
Arbitration Law.
This multi-methods study results in recommendations which are listed in its
conclusion. It is worth mentioning that both the Qatari arbitration draft law and
the QFC draft law are considered for the first time in a research study. Also, the
interviews which were held for the purpose of this research enrich the outcome
as the participants were chosen from various categories of arbitration
stakeholder, where some of them represent official entities; such as the
Legislation Department of the Ministries Council and some of them are high
ranking officials of these entities; such as the Minister of Justice.

Keywords: Arbitration in Qatar, arbitration in Middle East, civil and commercial
law, civil and commercial affairs, arbitration centres, arbitration draft law,
arbitration agreement, contracts, dispute resolution, QFC, QICCA, GCC Unified
arbitration draft law,

2
Acknowledgments

"11:ةلداجملا" )ريبخ نولمعت امب اللهو ،تاجرد ملعلا اوتوأ نيذلاو مكنم اونمآ نيذلا الله عفري( :ىلاعت الله لاق
(Allah will raise those who have believed among you and those who were given
knowledge, by degrees. And Allah is Acquainted with what you do.) [Al-
Mujadalah:11, the Holy Qur’an].
I am grateful to Allah almighty, who gave me the strength, knowledge and the
grace to preserve and successfully complete this thesis.
Profound appreciations are reserved for His Highness the Emir, Shaikh Tamim
Bin Hamad Al-Thani, and His Highness the Father Emir, Shaikh Hamad Bin
Khalifa Al-Thani, who keen to encourage Qatari people to educate. Also I am
very appreciated to my sponsor, Ministry of Interior headed by His Excellency the
Prime Minister and Minister of Interior of Qatar, Shaikh Abdullah Bin Nassir Al-
Thani and Human Resources Department, especially Scholarships Section, who
afforded me this opportunity to conduct this research.

Also I would like to thank the Qatar Defence Attaché Bureau in London, headed
by Brigadier Muhammed Bin Hamad Al-Naiemi, with special thanks for Major
Mohammed Bin Rashid Al-Kuwari, Dr. Kamel Zerzour and Mrs. Huda Sahib, for
their support, help and advice.

Profound gratitude goes to my supervisor, Mrs. Margaret Downie, for her guidance
and assistance throughout the period of my research and the support I have
received from her. Her encouragement has helped me to submit this work. Special
thanks also for Dr. Sarah Christie and Dr. Seonaidh McDonald for their guidance
and useful comments. Many thanks are due to the entire faculty and administrative
staff at Aberdeen Business School, especially Agnieszka Kruk, for their invaluable
help and support.
My thanks to all of participants, who granted me part of their times to be
interviewed or to answer my questions in writing. A special thanks for H.E. Dr.
Hassan Al-Mohannadi, the Minister of Justice in Qatar, who granted me a copy of
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the latest version of the draft law. Also I would thank Dr. Zain Al-Abdin Sharar for
his support.
Last but not least, a special thanks to my family. Words cannot express how
grateful I am to my mother for all of the sacrifices that she has made on my
behalf. Your prayers for me have sustained me thus far. My special gratitude also
goes to my wife Fatima and my daughters, Amna and Saeeda for their love,
support and strength at all times. Their dedication, patience and confidence in
me is a major catalyst in my life to pursue my aspirations. My appreciation goes
to my brothers, sisters, cousins and friends for their encouragement to complete
this study.

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External output

Published peer reviewed papers

1. Jassim Al-Obaidli, “Concerns about the enforceability of arbitral awards in
Qatar” (2014) 80 Arbitration 326-331.

http://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad69f8e0000015
2b9c943bd235d7ea2&docguid=I93E9B26011FA11E4A464FB74D7E933EB&hitgui
d=I93E9B26011FA11E4A464FB74D7E933EB&rank=3&spos=3&epos=3&td=12&c
rumb-action=append&context=46&resolvein=true

2. Al-Obaidli, J. (2015). The role of arbitration in completion the infrastructure
projects in Qatar. The Universal Journal of Arbitration (Arabic Text),
28(October), 131–148.

Peer reviewed conference abstracts

1. Al-Obaidli, J. (2014) The future of arbitration in Qatar.
(Oral presentation at Social Legal Study Association Conference (SLSA14) at
Robert Gordon University, UK).

2. Alobaidli, J. (2015) The role of arbitration in completion the infrastructure
projects in Qatar.
(Oral presentation at the 2nd forum of arbitration – Qatar University – Doha –
Qatar).

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Table of Abbreviations

EU European Union.
GDP Gross domestic product.
GCAC The Gulf Council Arbitration Centre.
QICCA The Qatar International Centre for Conciliation and Arbitration.
QFC Qatar Financial Centre.
GCC The Gulf Council Countries.
UNCITRAL United Nations Commission on International Trade Law.
NYC New York Convention 1958.
ACR Arbitration’s Centres Representatives.
ESR Education Sector Representative.
GSR Governmental Sector Representatives.
LSP The Lawyers Sector Participants.
LLF Local Law Firms.
ILF International Law Firms.
JLF Joint venture Law Firms.
LSC Representatives of Legal Department of Supreme Committee for
Delivery & Legacy (the new name of Supreme Committee of Qatar
2022).
LCIA The London Court of International Arbitration.
ICC International Chamber of Commerce.
GCCAC Gulf Countries Council’s Commercial Arbitration Centre.
QICDR Qatar International Court and Dispute Resolution.
CCP Code Civil and Commercial Procedures Code.
QALCCA The Draft of the Qatari Arbitration Law in Civil and Commercial
Affairs.
UAL-GCC The Draft of the Unified Arbitration Law for the GCC.

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Table of Terminology:

Shari’a: The Islamic Law.
GDP: The monetary value of all the finished goods and
services produced within a country’s borders in a
specific time period.
Competence de A central principle of international commercial
la competence: arbitration, where the tribunal has the competence to
decide its own jurisdiction.
Al Shura The Qatari Parliament.
Council:
Waqf: An inalienable religious endowment in Islamic law,
typically donating a building or plot of land or even
cash for Muslim religious or charitable.
Hudood: An Islamic concept that means punishments under
Shariah, which are mandated and fixed by God, based
on the Quran and Sunnah.
Qisas: A certain occasions of retaliation as a punishment in a
private dispute between two parties.
Qadha Alsalfah: Customary judiciary, which was related to Pearl Diving
issues in Qatar before Oil discovery.
The Hanbali It is one of the main four Islamic Sunnie Jurisprudence
School of school, which was created by Imam Ahmad Bin Hanbal
Thought: (780-855AD)
Sulh: A word comes from Musalaha, which means
reconciliation.
Shiekh: The chief of Tribe in Arabic societies.
Hakam: The arbitrator.
The Black The eastern cornerstone of the Ka’ba.
Stone:
Al-Ka’ba: A building located in the centre of Al-Masjid Al-Haram
in Makkah the most sacred mosque.
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Bab-Al-salam Gate of Peace is one of the gates at Al-Masjid Al-
Gate: Haram.
Qur’an: Or the Holy Qur’an is the sacred book of Muslims and
the last heavenly book.
Sunnah: The way of life prescribed as normative in Islam, based
on the teaching and practices of Prophet Muhammad
and on exegesis of the Qur’an.
Hadith: A traditional account of things said or done by Prophet
Mohammad or his companions.
Al-Ijmaa’: The consensus or agreement of the Muslim scholars
basically on religious issues.
Al-Qiyas: The extension of a Shari’a value from an original case,
which is ruled by the Qr’an or Sunnah, to a new case to
extend the same ruling to it, because the latter has the
same effective cause as the former.
Hukum: Judgment.
Qarar: Award.
Black Paper: Draft Law.

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