Introductory text by Mr. Jacques el-Hakim, Associate Professor, School of Law, Attorney

Are there any problems unique to arbitration between European countries and those in the Arab world?

In this area as in many others, it seems difficult to group countries into opposite categories. The economic and social situation and the political and legal regimes vary so much from one country to another within the same category that would be inaccurate and irrelevant to oppose one to another as homogeneous components for comparison. It would make more sense between industrialized and agricultural countries, between developed and developing countries and between socialist and market economies... It would revive the problems of North-South dialogue, and even those resulting from the recent extension of the Common Market to Mediterranean countries.

In many Arab countries arbitration is prominently used, both for private companies as well as for the State. It has always been used among individuals and in public affairs (one can consider, in particular, the arbitration that occurred in 659 to decide between Ali and Mo'awiya, both candidates for the caliphate) and has not experienced, for example, the hesitancy of French law in this area. But yet again, at this level, the European party's position appears to be favored. With its organization and experience, the latter, upon signing the contract, was able to prepare a record of the litigation that it anticipated and gather the evidence to support its claims. Once the conflict arose, it was more apt to preserve its rights, and to initiate, at the timely moment, the proceeding to appoint arbitrators, advocates and qualified experts, which are all appropriate elements to achieve a favorable award, whose enforcement it can obtain by appropriate means. Faced with this preparation, the Arab side often appears disorganized and inexperienced: lack of records and evidence, delay in performing obligations, compounded by shortages of goods and currency, bureaucratic delays, lack of qualified staff. Once the dispute arises, the Arab party is barely able, in a timely manner, to initiate the proceeding, to reserve its rights, to appoint the appropriate arbitrators and advocates based on their objective qualifications. Under these circumstances it is natural that the Arab side often loses its arbitration and assigns blame on the arbitrators or on the institution administering the arbitration. The repetition of these unfortunate experiences has led some Arab countries to move away from arbitration itself and, more particularly, from foreign arbitration.

Unable to compete with its counterparts from industrialized countries on the economic and technological levels, the Arab side cannot easily comply with court decisions or arbitration awards that enshrine this imbalance. This inability to override the rules of international trade of the competing legal institutions forces it to compensate for the imbalance through factual or legal means. Only greater information concerning economics and judicial matters by Arab countries, better management thereof, and greater preparation to conduct the arbitration can reduce the imbalance that affects their relations with industrialized countries. An exemplary commitment to good faith can then do the rest, this being the alpha and omega of any business relationship.

Access to the document:

Perception européenne de l'arbitrage avec les pays arabes 2011.pdf