The Oman Commercial Arbitration Centre

Mr James Bridgeman SC

 

Jane Lambert

I am delighted to report that my friend and colleague, James Bridgeman SC, will give a talk entitled  "Commencing an International Arbitration under the laws of England & Wales" n the Muscat Hall of the Oman Commercial Arbitration Centre ("OCAC") between 10:30 and 13:30 tomorrow.  James is a member of my chambers and a silk of the Republic of Ireland Bar.   He is also a member of the Bars of England and Wales and Northern Ireland, a past President of the Chartered Institute of Arbitrators and an accredited mediator.  He sits on several dispute resolution panels including the arbitration and domain name dispute resolution panels of the World Intellectual Property Organization. 

Oman is the latest member state of the Gulf Cooperation Council to establish an international dispute resolution centre.  The United Arab Emirates has the Dubai International Financial Centre Courts and the Abu Dhabi Global Markets Courts, Qatar has the Qatar International Court and Dispute Resolution Centre and Bahrain has the Bahrain Chamber for Dispute Resolution.   The OCAC was founded by Royal Decree 26/2018  dated 17 Oct 2018.   The Centre is governed by Regulations issued by the Board of Directors Chairman of the Oman Chamber of Commerce pursuant to art 2 of the Royal Decree. 

The Centre was set up to encourage investment in accordance with Oman's 2040 Vision.  It offers arbitration, mediation and other alternative dispute resolution through its panellists.  Its arbitration and mediation rules are published on its website.  OCAC also trains arbitrators in collaboration with the Chartered Institute of Arbitrators and mediators in collaboration with the Centre for Effective Dispute Resolution ("CEDR").  Photos of its hearing and meeting rooms, hire charges and other costs appear on the OCAC's website.

Anyone wishing to discuss this article may call me during UK office hours or send me a message through my contact form. 

Transformation of the Legal Services Industry in Saudi Arabia - Women in Mediation

Jane Lambert

Yesterday I attended a webinar organized by the Abu Dhabi Global Markets Arbitration Centre and Phoenix Advisors Ltd. on  "Transformation in the Legal Industry" in Saudi Arabia.  The webinar has been recorded and may be viewed here,  It is part of a series of webinars that considers alternative dispute resolution, technology and third party funding in the legal systems of several countries around the world.  The series started in India and will consider legal services in Lagos, New York, London and Abu Dhabi.

Although Saudi Arabia is an important country very little is written about its legal system.  The few publications in English that do exist are not very enlightening.  I once had the pleasure of speaking at the Arab-British Chamber of Commerce International Intellectual Property Conference "Combating Transnational Intellectual Property Crime" in London in 2013 where I had the pleasure of meeting one of the first women to be called to the Saudi Arabia bar as well as some of the kingdom's judges, officials and practitioners.  One of the attendees on the mediator training course that I attended in 2000 was a Saudi lawyer.  That was just about the limit of my previous personal experience of the Saudi legal system before the webinar.

One of the first speakers in the webinar was Rozana T AL Tayyar who founded Taswea, a mediation service in Saudi Arabia.  According to its website:

"TASWEA, previously known as “The Mediation Gateway”, was established in 2015 to promote amicable conflict resolution within the business community in Saudi Arabia to support business sustainability and relationships. Rozana ALTayyar, founder of TASWEA, has 18 years of overall experience in the field, achieving a 70% success rate in 2018."

Ms Al Tayvar reported that mediation is well established in Saudi Arabia and many of the mediators are women.   She mentioned that Saudi Arabia was one of the first countries to sign the Singapore Convention on Mediation which the UK has not yet done.

Bearing in mind that I had noted that Saudi women had only recently been allowed to practise law in their country (see Saudi Women can now practise Law 14 Oct 2013) I found Ms A; Tayvar's observations surprising but encouraging.   I asked a question about the sort of work that was referred to mediation generally and more particularly the sort of mediation work that was facilitated by women,  Ms Al Tayvar replied that all sorts of work were mediated and women handled every kind, In answer to a supplemental question, she explained that a legal qualification is not required of mediators.  She explained that she had acquired considerable expertise in financial services and that parties approached her because of that expertise.

Another speaker said that there was a tendency for mediators to adjudicate as well as mediate which is something that we are reluctant to do in this country.  The reasoning in Saudi Arabia seems to be that the mediator's expertise in the subject matter of the dispute qualifies him or her to determine issues in the dispute as well as catalyze negotiation.

Mediation was just one of many topics discussed yesterday.  Some questioners were interested in the use of blockchain technology, smart contracts and artificial intelligence.  There were polls on the effect of coronavirus on legal practice and the factors likely to attract clients which included creative fee arrangements.   I would have appreciated a bit of background on the legal system in the kingdom and how it works in practice but there is only so much that can be achieved in an hour's webinar.

Anyone wishing to discuss this article or any of the topics mentioned in it should message me through my contact page. I shall be glad to reply by phone, VoIP or email.

"Get yourself a good robust agreement"

Arab states

Source Wikipedia

Yesterday I attended a members' networking event at the Arab British Chamber of Commerce in Upper Grosvenor Street. There were 5 minute speeches by 11 businesses whose activities included training under-performing employees, software development, personal security in Southern Iraq, locating art and antiquities on public display, medical insurance broking, accountancy, wellness, money transfer, banking and facilitating business and investment in Saudi Arabia. All good stuff and I personally wish all those companies and business owners the very best of luck.

Before the speeches we heard an interesting presentation by Mr Abdelsalam El-Idrissi, Director of Trade Services of the Arab British Chamber of Commerce, on the history of the Chamber, the economic importance of the Arab world, the Chamber's services and some solid advice on doing business in the Middle East and North Africa ("MENA") in which I learnt a lot of things that were new to me. One of those things was that the Chamber had been created pursuant to decree No:K1175/D52/G of the League of Arab States in 1975 with the mandate of promoting, facilitating and encouraging bilateral trade so the Chamber must be approaching its 40th anniversary. Another was the volume and value of the trade that we do with the MENA region which Mr El-Idrissi demonstrated was more profitable to us than our trade with Brazil, China and India combined.

Mr El-Idrissi concluded his talk with the following top tips for businesses that wish to sell to the region:

• "Know your product
• Do some desk research
• Identify your market
• Visit the market
• Appoint a good agent
• Understand the 40/51 rule
• Draft a robust agreement
• Agree payment terms
• Export documentation"

There was a question and answer session at the end of his talk. I got up and asked Mr El-Idrissi "What should be the proper law of the 'robust agreement'? Should it be local law? Could it be English law or the law of the Dubai International Financial Centre ("DIFC") or Qatar Financial Centre ("QFC") where the laws are in English and they have English speaking judges applying the common law?" Mr El-Idrissi turned the question back on me. "You're a lawyer" he said. "Maybe you should be telling us." He then added that Sharia law is very fair and suggested that we should use that.

I have no doubt that Mr El-Idrissi is right to say that Sharia law is fair and it does have the advantage of being the source of law for the states in which British companies wish to do business. The problem for us is that we don't know very much about it and what little we do know tends to be on the penal sanctions and that scares us (see, for example, the BBC report What is Sharia and how is it applied? 14 May 2014).

As the question was turned back on me this is my advice. Try to persuade your customer, supplier, licensee, joint venturer, agent or other trading partner to accept an agreement in English which is widely spoken in the MENA region. Many business owners and professionals in the region speak the language well having lived in, or travelled to, the UK, the USA or Commonwealth.  English law is also well known and the English courts are well regarded throughout the world. Try to persuade your trading partner and his or her advisers of the advantages to them of choosing English law as the proper law and England as the jurisdiction for the resolution of disputes. If they are not persuaded of those advantages then the DIFC or QFC courts would be acceptable alternatives. If your partner would prefer not to use those legal systems then there is always arbitration in the region.

If you cannot do business on the basis that the agreement is in English and governed by English law then make sure that you are properly advised by a local lawyer who speaks English well and understand our legal and commercial systems as well as his own. I am sure that Mr El-Idrissi and his staff can find you such a lawyer but if they can't I can suggest some names. Over the years I have met a lot of lawyers (particularly in IP) and my former pupil, Alex Khan, has practised in Dubai. Between us we can come up with some reliable practitioners. Call them, talk to them about their education, training, specialization and experience and use your judgment just as you would if you were choosing a lawyer here. Finally, I have a suggestion to Mr El-Idrissi for another event for the Arab British Chamber of Commerce, namely an in-depth workshop on Sharia law for business people. I for one would certainly attend it as a delegate.

Should anyone wish to discuss this article or related matters, call me on +44 (0)20 7404 5252 during normal British office hours or use my contact form.

The UAE's Bilateral Investment Treaties

A bilateral investment treaty ("BIT") is an agreement between two governments on the terms by which the nationals of each contracting party may invest in the territory of the other.   A typical BIT will oblige each government to accept investments from the nationals of the other, to treat such investments no less favourably than those of its own nationals or those of the investors of any other country, not to expropriate such investments without adequate compensation and to submit any dispute with an investor to arbitration through the International Centre for the Settlement of Investment Disputes ("ICSID").

BITs have existed for over 40 years but their potency first emerged in a claim by the US waste disposal company Metalclad Insulation Corporation ("Metalclad") against the Mexican government for compensation for the the refusal by the local and state authorities of permission to use a landfill site that Metalclad had acquired near the small town of Guadalcázar, San Luis Potosi for the disposal of toxic waste. Metalclad claimed that the refusal of planning permission amounted to "expropriation" of the landfill site and in their award of 30 Aug 2013 the arbitrators held that the company was right. They ordered the Mexican government to pay Metalclad US$16,685,000. Mexico challenged the award in the courts of British Columbia which was the province in which the arbitrators had sat and won a modest reduction of the damages but the result was seen as a victory for a medium size company against a sovereign government.

Since Metalclad there has been a spate of claims by private companies against states under BITs and some of these relate to intellectual property.   Legislation by the governments of Uruguay and Australia to discourage smoking by requiring cigarette companies to package cigarettes with graphic warnings in the case of Uruguay and plain packaging in the case of Australia have been challenged by the tobacco giant Philip Morris under Uruguay's BIT with Switzerland and Australia's with Hong Kong for expropriation of the multinational's trade marks in those countries. In the claim against Uruguay the arbitrators have recently decided that they have jurisdiction to entertain the claim (see their decision of 2 July 2013 to that effect).   In the claim against Australia the case is proceeding in the Permanent Court of Arbitration in the Hague. Both sides have instructed counsel, the claimants members of the English Bar and the Australians barristers from Australia (see the notice on the PCA's website and Philip Morris's press release of 21 Nov 2011.

The latest claim for compensation in respect of intellectual property is Eli Lilly & Co's for C$500 million against the Canadian government for the invalidation by the Canadian courts of two of its Canadian pharmaceutical patents.   Eli Lilly complains that the Canadian courts have developed a doctrine on utility called the "promise doctrine" which exists nowhere else in the world and results in the invalidation of patents that would be allowed elsewhere.  In Eli Lilly's submission such invalidation amounts to expropriation of its patents without adequate compensation and it has served a notice of intent to claim dated 13 June 2013.  I have written a short article on the claim in "Biting Back: Claiming Compensation from Foreign Governments under Bilateral Investment Treaties for Failing to provide Adequate IP Protection" 27 July 2013 as well as a more detailed article that has been accepted for publication in the EIPR.

In my article for the EIPR I have argued that if the invalidation of Eli Lilly's patents and indeed the refusal of planning permission for the use of Metlclad's landfill site amounts to "expropriation" then so too would the failure by a government to provide adequate intellectual property protection.   In this regard, it is worth remembering that the United Arab Emirates has 24 BITs including agreements with the following brand owing and design and technology exporting states:

• Austria
• China
• Finland
• France
• Germany
• Italy
• South Korea
• Switzerland, and
• the UK.

It is of course worth remembering that BITs can work both ways.   The UAE has BITs with newly industrializing countries such as Bangladesh, Malaysia, Turkey and Vietnam where the Emirati interest is likely to be similar to those of investors from developed states. Similarly, Emiratis have substantial investments in stocks and real estate in London and other European capitals to which these BITs apply.

Should anyone wish to discuss this article, BITs in general or a particular issue call me on +44 (0)20 7404 5252 during office hours London time or fill out my contact form.   You can also follow me on Facebook, Linkedin, twitter or Xing.

Gulf Co-operation Council Commercial Arbitration Centre

The British Prime Minister's visit to the Gulf earlier this month had a clear sales mission ("David Cameron in the Gulf: Defence sales 'legitimate'" BBC 5 Nov 2012). Sales require contracts and sensibly drawn up contracts contain choice of jurisdiction clauses. I have already discussed extensively the common law courts in Dubai and Qatar and the Bahrain Camber for Dispute Resolution in "Bahrain: a Forum for the Resolution of IP and Technology Disputes?" 30 Jan 2011. There is, however, another forum in Bahrain, namely The Gulf Co-operation Council Commercial Arbitration Centre ("GCCAC"),

Although the GCCAC is in Bahrain it is a Gulf Co-operation Council institution rather than a Bahraini one.   According to its Charter, which can be downloaded from the GCC website together with its Rules of Procedure, the GCCAC was established by the governments of the GCC states at their 14th summit meeting in Riyadh in December 1993 and each of the GCC member states is represented on its Board of Directors.   The Charter and Rules of Procedure were approved by the GCC governments in November 1994 and the GCCAC opened for business on 19 March 1995.

Art 2 of the Charter provides:

"The Centre shall have the power to examine commercial disputes between GCC nationals, or between them and others, whether they are natural or juristic persons, and commercial disputes arising from implementing the provisions of the GCC Unified Economic Agreement and the Resolutions issued for implementation thereof if the two parties agree in a written contract or in a subsequent agreement on arbitration within the framework of this Centre."

According to the chapter on the GCCAC in WikiMediation, it resolves disputes relating to "banks, financial institutions, insurance, reinsurance, constructions, engineering, various contracting, intellectual property covering commercial and industrial, copyrights, and all types of international commercial contracts."

Art 10 of the Charter provides:

"An Arbitral Tribunal shall be formed by appointing a single arbitrator or three arbitrators as may be mutually agreed upon by the parties under an Arbitration Agreement or Contract.  In case there is no Agreement, the Rules of Procedure issued by the Board of Directors shall be applicable."

The arbitrator must be "a legal practitioner, judge or a person enjoying a wide experience and knowledge in commerce, industry or finance" and he "must be reputed for his good conduct, high integrity and independent views" (art 11). Such arbitrator may, but does not have to be, selected from a panel prepared by the chambers of commerce of the GCC member states.

Interestingly, art 2 (1) of the Rules of Procedure requires arbitration agreements to "preclude the reference of the dispute before any other authority" and also "any challenge to arbitration award passed by the Arbitral Tribunal."  Art 2 (2) proposes the following text for an arbitration agreement:

"All disputes arising from or related to this contract shall be finally settled in accordance with the Charter of the Commercial Arbitration Centre for the States of the Cooperation Council for the Arab States of the Gulf."

An arbitration is started by a written application to the Secretary-General of the GCCAC containing the following information:

(1)  The full name, address, nationality and capacity of the applicant;

(2)  The full name, address, nationality and capacity of the other party;

(3)  A statement of the nature of the dispute annexing relevant documents;

(4)  The name of the arbitrator (if any); and

(5)  A copy of the arbitration agreement and related documents (art 9 of the Rules of Procedure).

If everything is in order and all fees are paid, the documents are sent to the other side who has 20 days in which to respond which can be extended for a further 20 (art 11).

Art 29 requires the tribunal to apply the following principles in resolving the dispute:

1. The contract concluded between the two parties as well as any subsequent agreement between them.
2. The law chosen by the parties.
3. The law having most relevance to the issue of the dispute in accordance with the rules of the conflict of laws deemed fit by the Tribunal.
4. Local and international business practices.

Arbitrators have power under art 28 to make interim orders such as 

"ordering the deposit of the goods with third parties or sale of the perishable items thereof in compliance with the procedural rules in the country where the interim measure is adopted."

Members of these chambers would be glad to advise and represent parties to technology licensing or other intellectual property disputes before arbitrators appointed under these provisions.   Further information can be obtained from +44 161 850 0080 or you can send a message through my contact page. You can also follow me on Facebook, Linkedin, Xing or twitter.

The Qatar International Court and Dispute Resolution Centre

The Qatar International Court and Dispute Resolution Centre could be described irreverently as a one stop justice shop. Located in purpose build premises in the Qatar Financial Centre in Doha it houses the Qatar International Court (as the Qatar Financial Centre Civil and Commercial Court is now known) and provides facilities for early neutral evaluation, mediation and arbitration as well as litigation.

The Centre's vision is:

"To develop a world class International Court and Dispute Resolution Centre and provide national and international civil and commercial dispute resolution services within Qatar and the Middle East region that are accessible, modern, expeditious, economical and responsive to the needs of global business markets."

Its facilities include multi-channel video and audio-conferencing equipment that enable parties and their counsel to conduct proceedings from anywhere in the world.  Its court room in Doha is equipped with computers fitted with touch screen panels for the parties and proceedings are displayed on large TV monitors. Facilities for negotiation, mediation and other forms of alternative dispute resolution ("ADR") are provided in the same building. 

I described the court's jurisdiction and organization in my article  "Qatar Financial Centre: Civil and Commercial Court Regulations" which appeared on this blog on 28 June 2011,  Since that article the court has published an introduction to the court and its procedure ("Additional Procedural Information"), Procedural Rules and  an Official Practice Guide.

Art 29.1 of the Regulations provides that "any qualified lawyer who is entitled to appear before the superior courts ......of any ... jurisdiction shall have rights of audience. Since the proceedings are in English and most of the judges cone from the United Kingdom barristers from England and Wales would be well placed to represent parties before that court.   

Just I wrote this article I watched the Qatar team proudly march through the Olympic stadium.  I was delighted to see women among their number and I extend a particularly warm welcome to them. I hope they enjoy their stay in my country and wish them the best of luck in their competitions.  My best wishes to the  representatives of the other countries in the region too.

Should anybody wish to discuss this topic further, he or she can call me on +44 161 850 0080 or fill in my contact form. He or she can also contact me through Facebook, Linkedin, Xing or twitter..

Intellectual Property Law in Kuwait

Kuwait has an estimated population of just under 3.6 million in a land area of 17,820 square kilometres. It is one of the member states of the Gulf Co-operation Council ("GCC") (see "Gulf Co-operation Council Constitutional Framework" 10 June 2011 and "Patents: Gulf Co-operation Council" 20 Jan 2011).

International Obligations

This small but significant country is one of the founding members of the World Trade Organization ("WTO"). As such it is party to TRIPS (The Agreement on Trade Related Aspects of Intellectual Property Rights) which requires WTO members to give effect to the provisions of that agreement. That includes

• complying with arts 1 to 12 and art 19 of the Paris Convention for the Protection of Industrial Property ("Paris Convention") pursuant to art 2 (1) of TRIPS;
• complying with arts 1 to 21 of the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention") pursuant to art 9 (1) of TRIPS;
• protect the work of performers, sound recording studios and broadcasters in accordance with art 14 of TRIPS;
• provide for the registration of trade marks pursuant to arts 15 to 21 of TRIPS;
• protect geographical indications pursuant to arts 22 to 24;
• protect industrial designs pursuant to arts 25 and 26;
• provide patents for inventions in all fields of technology provided they are new, involve and inventive step and are capable of industrial application pursuant to arts in accordance with arts 27 to 34;
• protect semiconductor topographies in accordance with certain provisions of the Treaty on IP in Respect of Integrated Circuits ("the Washington Treaty") pursuant to arts 35 to 38 of TRIPS;
• protect undisclosed information pursuant to art 39; and
• provide civil remedies, criminal sanctions and other provisions for the enforcement of intellectual property rights under Part III of the Agreement.

Kuwait has been a member of the WIPO since 14 July 1998 but it does not appear to be party to the Paris or Berne Conventions or the Washington Treaty. Indeed, the only convention listed on the WIPO website to which Kuwait is party is the WIPO Convention.

The Kuwaiti government has entered a number of bilateral investment treaties with a number of countries (though not with HM government) which usually require the protection of intellectual property. Citizens of either party can sometimes claim compensation in ICSID (International Centre for the Settlement of Investment Disputes) against the government of the other party for non-compliance with such a treaty (see Metalclad Corp. v Mexico (30 Aug 2000)).

Legislation

A summary of Kuwait intellectual property laws and related legislation appears in WIPO lex. The main statutes appear to be:

• Law number 4 of 1962 relating to patents, designs and industrial models as amended by law number 3 of 2001 (Arabic and English);
• Law number 64 of 1999 concerning intellectual property rights (Arabic and English); and
• Decree number 68 of 1980 on trade marks as amended by decree no 10 of 1987 (Arabic only).

As Kuwait is party to the GCC, the Patent Regulation and the Implementing Bye-laws of the GCC will also apply.

Dispute Resolution

Industrial property disputes can be resolved through arbitration pursuant to Law No. 11 of 1995 regarding judicial arbitration with respect to civil and commercial matters (Arabic and English). The Kuwait Chamber of Commerce and Industry appears to provide arbitration services.

Intellectual Property Offices

According to WIPO the competent authority for patents and trade marks is the Trade Marks and Patent Department of the Ministry for Commerce and Industry at PO Box 2944, Safat 13030, Kuwait City, Tel +956 22 42 44 26. That Ministry is also responsible for copyright policy.

The GCC Patent Office is at the GCC Offices, PO Box 340227, Riyadh, Saudi Arabia 11333 (see Patents: Gulf Co-operation Council 20 Jan 2011).

Further Information

Anyone requiring further information about this article should call me on 0800 962 0055 or use my contact form. I have two contacts in Kuwait to whom I shall be glad to refer any enquiries on any substantial issue of Kuwaiti law.