Abu Dhabi is emerging as a centre for conflict resolution

The services of a court offering business arbitration are growing worldwide, particularly in the Middle East

The Abu Dhabi skyline. Bloomberg
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When the pioneering chip tycoon Morris Chang spoke of the death of globalisation last week, it said something about how low confidence has run down in international institutions.

“Globalisation is almost dead and free trade is almost dead,” he declared. “A lot of people still wish they would come back, but I don't think they will be back."

One institution that seems built for these troubled times is the International Chamber of Commerce (ICC) court, which offers businesses arbitration to resolve disputes and is finding interest in its services growing worldwide, most spectacularly in the Middle East.

The appeal of its formula is that it offers global and local aspects to resolution work. It terms this approach "glocal". In times when changes are driven by geopolitics, this is something that can often hold more appeal than pursuing contractual disputes in big courtroom jurisdictions such as London.

When I caught up with Claudia Salomon, president of the ICC International Court of Arbitration, she spoke in glowing terms about the rise of the Abu Dhabi office within its worldwide network.

“We have seen the highest growth in terms of ICC cases filed in the Mena region,” she told The National. “We have cases in Arabic and the case-management team in Abu Dhabi speaks Arabic.

“Within the last 10 years, the number of parties [coming to the ICC court] has tripled and most frequent listed nationalities of the Middle East are the UAE, Saudi Arabia or Qatar parties.

“One of the unique aspects in the Middle East is that the law is civil law and there doesn’t have to be automatic assumptions about arbitrations needing to take place in other parts of the world.”

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The appeal of the ICC International Court of Arbitration's formula is that it offers global and local aspects to resolution work

This means that there is scope for regional, cross-border disputes to be settled in any of the cities in the region. Being closer in terms of language and time zone combines well with the international principles underpinning an institution that is marking its century next year.

The nature of the cases in the Middle East correspondingly match the profile of the local economy. In the region, the ICC caseload is 70 per cent related to infrastructure projects, with energy businesses an important component.

The court is not just a resort for international businesses but offers a one-stop shop for locals as well, with one in five cases being entirely domestic. Ms Salomon notes this is a phenomenon that has grown alongside the overall development of the legal framework in the UAE.

“The cities of Dubai and Abu Dhabi have promoted themselves by creating the legal infrastructure for their environment,” she said.

The ICC court formally upgraded its presence in the UAE to a case management office in Abu Dhabi in 2021, and it looks to this branch to handle more work, especially from Saudi Arabia’s development plans under Vision 2030.

Given the changing international landscape and, in particular, the torrent of sanctions triggered by the war in Ukraine as well as the isolation of Iran, the resilience of what is essentially a consensual system faces ever-changing challenges.

The court believes it has unique vantages that are not available to the courts that handle international disputes.

Take, for example, its close relationship with the French Treasury, which has allowed it to monitor and adjust depending on the impact of EU sanctions on Russia.

The DIFC Courts. Sarah Dea for The National

Having taken onboard the ICC feedback, French officials were involved in the amendment of Russia-targeted sanctions to ease out problems that would arise with the implementation of the original measures.

In particular there was a clearer definition of the scope of the sanctions, something particularly important to non-EU businesses.

Another privileged position derives from the ICC court's relationship with the US Office of Foreign Assets Control, which granted a licence related to Iran sanctions. This enabled payments as a result of ICC arbitration proceedings to be both received and processed.

There are plenty of avenues to take contractual disputes. London, for instance, has a long-established body of globally significant case law. There are also significant challenger cities such as Dubai, which has the Dubai International Financial Centre. However, the structure of the regional economy is one that helps to drive the growth of arbitration.

Ms Salomon sees the ICC court’s work as granting the Middle East the advantage of regionally based neutral platforms for hearing as well as facilitating the advantages of Free Trade Zones. All its arbitration agreements must finally be ratified by legally qualified court members.

“From our perspective what we are emphasising in the Middle East, as we are in the other parts of the world, is that global and incredibly local arbitration can take in any of the cities in the region,” she concluded.

Once a draft agreement is concluded anywhere in the world, it goes to the main court for scrutiny, and only then is it finalised. “This ensures that ICC awards are more robust, able to withstand any challenges and more enforceable than those of other providers.”

Published: December 12, 2022, 4:00 AM