Due Process in International Arbitration Transcripts

254 Pages·2009·0.7 MB·English

12th International Arbitration Day
Due Process in
International Arbitration
Transcripts
1
Contents
Section 1 Introduction and Opening Address 3
Section 2 Due process – balancing fairness and efficiency – the harmonising chord 13
Section 3 Tribunal constitution – who guards the guardians 33
Section 4 Adducing evidence – anything goes 61
Section 5 Equal treatment – should arbitrators level the playing field 85
Section 6 Control over proceedings – what are the limits on party autonomy 121
Section 7 Special circumstances – how elastic is due process 153
Section 8 The IBA Rules – revisiting best practices 187
Section 9 When legal cultures collide – are there any due process sine qua nons 235
Section 1
Introduction and
Opening Address
1 Introduction and Opening Address
2 PIERRE BIENVENU: Distinguished guests, dear
3 colleagues, cheres amis, good morning.
4 My name is Pierre Bienvenu. I am Co-Chair of The IBA’s Arbitration Committee and a
partner of the
5 Canadian law firm Ogilvy Renault. As Chair of this 12th
6 International Arbitration Day, and on behalf of the
7 International Bar Association, it is my distinct honour to
8 welcome each and every one to today’s conference.
9 The IBA annual International Arbitration Day since
10 inception has had the mission of being forward looking and
11 topical for all international arbitration practitioners. In
12 the past it has fulfilled this mission by engaging speakers
13 and delegates of quality to explore themes of relevance to
14 the evolving practice of international arbitration.
15 This year’s gathering in Dubai is no different.
16 Today you will hear from a stellar group of moderators and
17 speakers who will enlighten us on the multiple facets of due
18 process. The topic, all will agree, is an ambitious one;
19 yet it is timely as our field continues to evolve at a
20 formidable pace.
21 During yesterday evening’s welcome reception,
22 greeted, as we were, with the warm hospitality that Dubai
23 has become so famous for, it was more obvious than ever that
24 the time had come to hold this annual event in the Middle
25 East. As many of you know, the UAE became a signatory to
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1 the New York Convention in 2006 and Dubai is at the
2 forefront of international arbitration in this region with
3 the Dubai International Arbitration Centre and the recently
4 established DIFC-LCIA Arbitration Centre as well as the
5 enactment recently of the DIFC Arbitration Law which, as we
6 all know, is based on the UNCITRAL Model Law.
7 In this regard, I would be remiss not to reiterate
8 our thanks to the Right Honourable Sir Anthony Evans for his
9 illuminating words earlier this morning.
10 Before introducing our first guest speaker,
11 I would like to mention that we are honoured today by the
12 presence of the President of the International Bar
13 Association, Mr Fernando Pelaez Fernando will address us later, but on your behalf
15 I would like to extend to him a warm welcome to this
16 gathering of more than 440 lawyers from 50 countries.
17 There has been a slight change in the programme
18 made to allow this morning’s opening address to include
19 remarks from His Excellency Dr Omar Bin Sulaiman, the
20 Governor of the Dubai International Financial Centre.
21 Today’s luncheon will take place as planned, but
22 we will have the privilege of hearing from Dr Omar now as
23 opposed to during the luncheon.
24 Dr Omar is known to many for his remarkable and
25 visionary leadership as Governor of the DIFC whilst
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1 simultaneously acting as the representative for DIFC affairs
2 of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Vice
3 President and Prime Minister of UAE and Ruler of Dubai.
4 Dr Omar is also the Vice Chairman of the Central
5 Bank of the UAE, a post that is equal in ranking to that a
6 Minister of the Emirati Federal Government.
7 Today the DIFC is the world’s fastest growing
8 financial centre and is home to more than 700 companies,
9 including many of the world’s leading financial firms. The
10 DIFC aims to be universally recognised as a hub for
11 institutional finance and a gateway for capital and
12 investment in a region stretching from central and eastern
13 Africa to the Indian sub-continent. It is the world’s
14 fastest growing centre of its kind. This phenomenal success
15 would not have been possible without Dr Omar’s vision and
16 relentless effort.
17 Ladies and gentlemen, we are deeply honoured that
18 His Excellency Hadef Al-Dhahiri, the Minister of Justice of
19 the UAE, has accepted our invitation to address the
20 delegates of this conference. I wish to express to him our
21 profound gratitude for being here today.
22 Without further ado, I leave the floor to the
23 first of our distinguished guests, His Excellency
24 Dr Omar Bin Sulaiman.
25 HIS EXCELLENCY DR OMAR BIN SULAIMAN: Thank you
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1 for giving me too much credit I don’t deserve, especially in
2 front of such credible practitioners in the legal practice.
3 So I have now a responsibility and obligation to fulfil and
4 try to match some of the things you mention.
5 Your Excellency, Dr Hadef Al-Dhahiri, the UAE
6 Minister of Justice, Excellencies, distinguished guests,
7 good morning.
8 It’s my pleasure to be with you today at the start
9 of the 12th International Arbitration Day conference.
10 I would like to welcome all of you who have come from across the
11 world to the UAE and Dubai to attend this conference. This
12 conference is a great opportunity to discuss some of the
13 critical issues facing the development of arbitration,
14 mediation and dispute resolution and their critical importance
15 for the commercial world, today more than ever.
16 Dispute resolution mechanisms have always been key
17 to the success and competitiveness of an economy, but quick
18 and efficient dispute resolution is particularly important
19 now, at a time when the global economy is facing challenges.
20 Time is money, every business person knows that. When it
21 comes to dispute resolution, the faster it is, the quicker a
22 business can move on. However, given the increasing
23 complexity of international business and the rising volume
24 of commercial disputes, traditional judicial systems may not
25 always be able to offer speedy dispute resolutions.
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1 Therefore, the availability of alternative forums for
2 resolving commercial disputes is vitally important.
3 Recognising these critical business needs, we at
4 the DIFC have created a world class judicial system and
5 then, in a joint venture with the London Court of
6 International Arbitration (the LCIA) we set up the DIFC-LCIA
7 Arbitration Centre. The establishment of the arbitration
8 centre is part of the DIFC strategy to develop the UAE and
9 Dubai to a leading international dispute resolution centre
10 with a particular emphasis on international arbitration.
11 In fact, our plan for developing Dubai into a
12 leading international arbitration centre goes beyond
13 infrastructure. We seek to create a vibrant environment for
14 a complete arbitration community to flourish. We are keen
15 to invite arbitrators, litigators, lawyers and other dispute
16 resolution professionals from all around the world to be
17 part of the arbitration community in Dubai.
18 Ladies and gentlemen, I thank you once again for
19 being with us today. I wish you a great success in today’s
20 forum and in the near future too.
21 It now gives me great honour and pleasure to
22 introduce His Excellency Hadef Al-Dhahiri to give the
23 keynote speech for today.
24 HIS EXCELLENCY HADEF AL-DHAHIRI: Your Excellency
25 ... distinguished speakers, honourable justices, ladies and
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1 gentlemen, good morning.
2 I would like to thank the DIFC for its kind
3 invitation to me to deliver these remarks. I am very
4 pleased to be here at this distinguished forum covering due
5 process in international arbitration, which is an essential
6 element for the continued success and utilisation of
7 arbitration as an alternative dispute resolution mechanism.
The selection of this timely topic as a subject for
9 discussion by the organisers of this forum is an expression
10 of their appreciation of its importance.
11 I am delighted that this forum has chosen
12 this topic for discussion by very distinguished scholars and
13 practitioners in international arbitration; and, drawing on
14 their vast wealth of experience in the field, they will
15 make, I’m sure, a great contribution to the development and
16 growth of arbitration in the region as an effective and
17 preferable instrument for the parties involved in legal
18 disputes to resolve their differences in an efficient and
19 cost effective manner.
20 Ladies and gentlemen, the UAE in general and, in
21 particular, Dubai, has invested heavily in the development
22 and establishment of an institution for arbitration. Dubai
23 has established the Dubai International Arbitration Centre,
24 which has become one of the leading arbitration centres in
25 the region; and it has provided for special courts in the
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1 Dubai International Financial Centre which have exclusive
2 jurisdiction over all cases arising out of transactions in
3 the DIFC.
4 Moreover, the DIFC has recently entered into an
5 association with the LCIA to form the DIFC-LCIA Arbitration
Centre. The emirate of Abu Dhabi has established its own
7 arbitration centre for the settlement of disputes.
8 At the international level the UAE has ratified
9 the New York Convention for the recognition and enforcement
10 of arbitration awards, as well as other regional
11 convention on the same subject, to affirm its support for
12 arbitration as an alternative dispute resolution mechanism.
13 In this aspect, the UAE has signed and ratified various
14 bilateral treaties and conventions that provide for
15 arbitration for the settlement and potential disputes that
16 may arise as to the interpretation and application of such
17 treaties.
18 The UAE supports strongly arbitration as an
19 alternative dispute resolution mechanism and it is deeply
20 embedded in its legal system. Under the UAE law on the
21 establishment of conciliation and mediation committees in
22 Federal Court no. 26 for the year 1999 resort to such
23 committees is a condition precedent for a court of law to
24 hear civil cases, commercial cases and labour cases that may
25 be brought before it under this law.
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