Leading the Way

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Dr. Ismail Selim, Director of The Cairo Regional Centre for International Commercial Arbitration, discusses the growth of arbitration in the region and how the CRCICA is poised to continue leading the development and evolution of the discipline.

 

LT: I would like to start with two personal questions. Firstly, what would you say has driven your career choices and trajectory so far? Secondly, how and why did
you end up with a knowledge of basic Chinese?
IS: I chose to study law because it gives a lot of choices as
to the profession one can practise. I was in the Arabic section
of the Faculty of Law, Cairo University – at that time, there
was no English or French section. At the time, our most
prominent diplomats, such as Dr. Nabil Elarabi and Mr. Amr
Moussa, had graduated from the Faculty of Law, and initially
I made this choice wanting to become a diplomat. After four
years of studying, I found I loved the law and I wanted to
fully dedicate my time to it. I didn’t want a career essentially
dedicated to politics but with a smattering of, for example,
international law – as is the case if you work in the Legal
Department of Foreign Affairs.
So I started my career at Shalakany, which at that time,
along with Baker & McKenzie, was by far the biggest firm
in the country and really the best to start understanding the
practice of an international business law firm. I practised
hotel management contacts and post-arbitral proceedings.
I was very happy at Shalakany and was especially fond of
Dr. Mona Zulficar and Mr. Saleh Hafez (may his soul rest in
peace), but when I got the opportunity to apply to become
a Public Prosecutor I could see it was a once in a lifetime
chance. It was an honour to serve justice and I felt that I
should try it and that if I wanted to return to private practice,
the field of law would always be open to me.
From 2003-2007, while working in the office of the
Prosecutor General, I was seconded to the CRCICA. I have
been very attached to this institution since this time. I was
drafting my thesis on international commercial arbitration
and was supported and guided in this by Dr. Aboul Enain, to
whose soul it was dedicated after he died in 2008. Here I got
exposed to the practical experience of arbitration.
After having served as a civil judge, I met Dr. Mona Zulficar
again in 2009 and she encouraged me to come back to private
practice. I joined Zulficar & Partners and worked with Dr.
Mohamed Salah Abd el Wahab for over five years. Then
came a time where I felt within myself that I wanted to have
a leadership role, to capitalise on all my experience in the
judiciary and in the private sector. When I got an offer from
Al Tamimi, the biggest law firm in the region, which was
opening its branch in Cairo, I knew that it was the right time
for me. So I joined them to head their dispute resolution
department – arbitration and litigation.

I was very happy at every place I worked. I have always been driven by a
desire to continue learning and by the feeling that it was a necessity that I
use what I learned. So, for example, though I really enjoyed my work as a
Public Prosecutor, I felt compelled to return to private practice so as to use
what I had learned through my PhD and my studies in France, and apply it
practically. Had I continued as a judge there would have been limitations
on the degree to which I could use what I had learned. By contrast, in the
private sector I could expand as an arbitrator. Prior to my appointment
at the CRCICA in January 2017 I had sat in 25-30 cases as an arbitrator.
I served as counsel in about 15 cases in addition to my experience as a
sitting civil judge.
In Al Tamimi, the practice grew. Having started alone, I ended up with a
team of six members. It was gratifying to see this growth and to achieve
recognition as a leading individual from entities such as Legal 500. Then
I learned that the former Director of the CRCICA Dr. Mohamed Abdel
Raouf, did not want to renew for a second term. This is an institution that
I have loved since 2003. In May 2016 I had been appointed a member of
the Advisory Committee of the CRCICA, so I learned that there would be
interviews for a new Director by the President and Vice President of the
Board of Trustees. I decided to put myself forward as a candidate and I was
selected because they saw that I had a very ambitious project for the centre.
My vision, plan and project for the centre comprise five core parts – some
of which have already been achieved, some of which are ongoing.
1) I appointed Dr. Dalia Hussein as Deputy Director of the CRCICA,
which was an absolutely well merited promotion for her.
2) We have also promoted five from of our experienced staff members to
the positions of Associate Directors or Counsels respectively and are in the
process of training all the staff here so each has a development plan.
3) On the 31st March 2017 we finalised a French version of our rules,
to serve our francophone community in Africa and the Middle East, after
working for 38 years in English and Arabic exclusively. This is part of my
broader commitment to diversity, as a signatory to the Equal Representation
in Arbitration Pledge, in support of gender, age and geographic diversity.
4) I have a plan for the centre’s expansion in sub-Saharan Africa,
particularly through connections with Chinese users based in the region.
Here I can refer back to the second part of your question. As the son of a
diplomat my earliest years were spent in Geneva, Cote d’Ivoire and later,
Beijing. I was exposed, at a very formative age, to vastly different cultures
and I also acquired a knowledge of basic Chinese, though I have never
studied the language formally except for a handful of private lessons last
year.
In May 2017, the CRCICA signed an agreement with the BIAC (Beijing
International Arbitration Centre) and the KLRCA (Kuala Lumpur
Regional Centre for Commercial Arbitration – now the Asian International
Arbitration Centre or AIAC): the Belt and Road Cooperation Agreement.
Our cooperation with the BIAC has opened the space for us to again work
with FOCAC (the Forum on China-Africa Cooperation), for whom we
hosted the first conference in 2009. We also have a cooperation agreement
with CIETAC, the oldest Chinese arbitration institution, which has
reconnected us with the very influential China Law Society. In the eyes
of our users, our connection with these two big Chinese legal centres will
maximise the confidence of the Chinese users we hope to engage with. It
will also increase our knowledge and expertise of the Chinese legal system
and its needs. We have had Chinese users at the CRCICA and they trust
the centre, which is quite a feat as they did not know us before. But I know
we now have Chinese companies choosing the CRCICA for their dispute
resolution clauses.
5) I have a plan for comprehensively updating our rules, which will start in
earnest next year. Though our rules are very modern there are some updates
we would like to incorporate, for the benefit of arbitration proceedings
according to best practice – to be able to consolidate parallel proceedings,
for example.

LT: Could you tell us a bit about the history of the CRCICA? What was the context of its formal establishment in 1979? What did the establishing bodies intend to achieve and have the goals for the CRCICA changed as the years have
passed?
IS: The CRCICA was established by AALCO (the Asian-
African Legal Consultative Organization), which was itself
founded in 1956. In 1978 the AALCO countries felt that the
administration of international arbitration should not only be
concentrated in Europe and North America. They decided to
create two international arbitration centres – one in Kuala
Lumpur, the other in Cairo – in order to serve Asia, Africa
and the Arab World.
The CRCICA therefore was created to administer arbitration
proceedings according to best practice. AALCO was very
progressive and had a real vision for how the centre should be
independent of its host state, how it should promote itself and
grow. This is in evidence in early letters exchanged between
the Egyptian government and AALCO.
The continued success of the centre is due largely to its
dedicated directors. The tenure, in particular, of Dr. Aboul
Enein, Dr. Nabil Elarabi and Dr. Abdel Raouf has marked the
history of the centre. It is also very important to recognise
Dr. Esmat Abdel Maguid, who later became the Minister
of Foreign Affairs and who prevented the relocation of the
centre in 1987 when Saddam Hussein wanted it to be moved
to Baghdad. The firm position taken by Dr. Esmat resulted
in the Headquarter Agreement of 1987, in which the centre
ceased to be experimental and became permanent.
Our strength as the CRCICA is in our neutrality. We are an
international organisation that enjoys the immunities and
privileges of any international mission or any embassy. The
Egyptian government, throughout our 38 years of operation,
has never interfered in our work or our decisions.
LT: Arbitration as a legal discipline seems to be a field where those who practice it are prone to considerable self reflection about its role and impact. Why do you think that is?
IS: Firstly, arbitration should be considered as a justice, not
a business – even when it generates revenue. This must be
understood by those who practice it. It should always be
distinguished from civil proceedings law, which applies
to state court litigation. It is a flexible means of resolving
disputes related to international and domestic trade and
investment, which necessarily entails fewer formalities and
greater room for party autonomy in the rules that govern it.

Neutrality, impartiality and ethics are extremely important
and without them arbitration cannot succeed. Arbitrators are
not judges appointed by the state – they are private persons,
appointed by the parties in question and alternatively by an
arbitral institution, yet they must abide by the same standards
of impartiality and independence as sitting judges. There are
in fact particularities of arbitration that you don’t see with
litigation and state court proceedings. For instance, if there is
a lack of independence in arbitration proceedings it must be
disclosed, even though some issues may later be waived by
parties, depending on circumstance.
Arbitration permits the parties of different legal traditions
to solve their disputes before a single legal tribunal, which
is part of its flexibility. Tailored proceedings can be agreed
upon to accommodate the needs of parties from the civil law
system versus the common law system, for example. You
cannot find this before any state court, where you always
apply the civil law proceedings of that court. If you go to
English courts, you will apply English procedural law; before
Egyptian courts you will apply Egyptian civil procedural law.
That’s the brilliance of arbitration.
You will find common arbitration rules and provisions, which
form certain standards of best arbitration practice. Different
countries have their own particularities when it comes to
arbitration law, but there are commonalities as well.
There are important differences between commercial
arbitration and investment arbitration. An arbitration
agreement comprises either a clause in a contract/commercial
agreement or what we call a submission agreement – an
agreement to refer a dispute to arbitration after its occurrence.
This is for commercial arbitration. But in addition to that, an
investor-state dispute can be referred to arbitration, based on
an article in a bilateral or multilateral investment treaty, or on
an investment law, where the state offers to solve the dispute
through arbitration.
In investment arbitration, the subject matter of the dispute is
the investors’ guarantees – which are made by the state to
investors, guaranteeing, for example, that the investment will
not be expropriated, unless there is fair, effective and prompt
compensation for doing so.
Under these circumstances, many people will ask why
investment arbitration is criticised, whether for valid or invalid
reasons. There are several reasons put forward but one of the
main considerations is that the interpretations of some of the
investment guarantees by different arbitral tribunals are not
uniform. So the state can no longer predict how investment
guarantees will be construed by the arbitral tribunals. One
tribunal may give a wide interpretation, another a narrow one.
So the UNCITRAL has a working group, studying a proposal
to create an investment court or at least an appellate body to
ensure there is uniformity in the interpretation of investment
guarantees.
I attend as an observer the working sessions of the
UNCITRAL in Vienna currently working on the reform of
the ISDS (investor-state dispute settlement) regime. This is
really one of the hot topics for everyone working in the field
of arbitration.

LT: What initially drew you to arbitration?
IS: I started arbitration by coincidence.
When I joined Shalakany, three months
after my graduation, I was assigned
by Mr. Saleh Hafez to research a postarbitral
case: the enforcement of foreign
arbitral awards.
There are two ways to enforce arbitral
awards:
1) Through an order
2) Through a fresh case
According to current practice at that
time (1997), foreign awards were
enforced through filing a fresh case, a
longer and more onerous path. Domestic
awards were enforced through an order,
without there being any need to file a
fresh case.
My research was an invitation to explore
this new shortcut path for foreign
awards and it worked. Early in 1998,
the Cairo Court of Appeals accepted
this new trend; it was then endorsed
by the Court of Cassation. I became
very interested in the enforcement of
arbitral awards and this opened my
eyes to arbitration, as an important and
fascinating field.
You could work on an arbitration case
in so many areas: construction, oil and
gas, hospitality, media, entertainment…
so you come to understand many
industries and fields of law. You have to
be strategic; you have to research, write,
orally plead. Then you serve justice.
Though a field such as M&As may be
more lucrative in an absolute sense, as
an M&A deal would last four or five
months compared to an arbitration case
which could last more than a year or
sometimes several years, still the scale
of the research and the implementation
of different legal provisions is narrower.
So many people are drawn to arbitration
because of its breadth as a discipline.
LT: In your opinion, how has arbitration in Egypt been evolving and where do you expect it to go?
IS: In Egypt, arbitration has evolved
in the right direction. Egypt is the
biggest and oldest seat for arbitration in
Africa and in the Arab region also. The
legislation in Egypt is friendly vis-à-vis
arbitration and so are Egyptian judges.
Between the establishment of the
CRCICA and the enacting of
Egyptian arbitration law in 1994, most
arbitrations pertaining to contracts
in Egypt still took place elsewhere –
Paris, London, Geneva, and the US.
Now international arbitrations are
safely seated in Cairo because we have
this modern platform. Though there
are some improvements that need to
be made to Egyptian arbitration law,
which is derived from the UNCITRAL
Model Law, most of these provisions
apply to ad hoc arbitration, so we are
not directly affected.
On the domestic level there have been
instances of fraudulent arbitration
practices, particularly in 2007-2008.
However, there has been a strong
reaction and punishment from the
judicial authorities in order to eradicate
these practices. There have also been
cases of bad practices from purported
arbitration centres, which are not true
arbitration institutions but annexes to
law offices, contributing to bad practice
at the domestic level. But again the state
has taken a firm stance against this.
Fraudulent arbitration in real estate,
which I have written about before, has
affected land ownership. Arbitration
has in the past been used as a tool to
permit the undue acquisition of land in
Sinai, with the true owners of the land
unaware of the fraudulent arbitration
proceedings. But again this relates to
ad hoc arbitration: people who want
to practice fraudulent arbitration
manoeuvres don’t come to a prominent
or notable centre to do so.
Our judicial authorities are aware of
the importance and economic value
of having Cairo as an important seat
of arbitration. We work hard to keep
a strong channel of communication,
recently organising a roadshow for the
Egyptian judiciary on the New York
Convention, in collaboration with the
ICCA. This was attended by over 50
sitting or retired Egyptian judges and
many of the speakers were also from the
judiciary, which added to the credibility
of our message.
We also organise a biennial conference
in Sharm el Sheikh on the role of state
courts in supporting international
arbitration.
Arbitration will of course continue to
grow and develop. I am particularly
happy that we have a good, encouraging,
cordial relationship with the judiciary
and I am keen to encourage continuous
dialogue to maintain this.
LT: Having recently attended the celebration of the UNCITRAL here at the CRCICA, I was struck by your collective convening power. How important is it to hold such
You could work on an arbitration case in so many areas: construction, oil and gas, hospitality, media, entertainment…so you come to understand many industries and fields of law. You have to be strategic; you have to research, write, orally plead. Then you serve justice. conferences, in terms of the essential work of the CRCICA?
IS: Among the goals of the CRCICA,
from the very beginning, was not only
administering arbitration proceedings,
but having an academic and informative
role, through holding conferences on
arbitration and through the training of
arbitrators.
One of our essential conference
objectives is to develop arbitration.
So we bring prominent speakers,
we inform our audience and the
speakers themselves learn from good
questions. To maximise the benefits
of a conference, we need to publish
and share some of the work produced.
This mitigates, to some degree, the
risk of everyone returning home and
no action being taken. Some speakers
very readily provide their speeches
and presentations. We also have a very
well organised, developed, dedicated
conference department headed by Mrs.
Wissam El Molla (Associate Director),
who have files of all the conferences
of the CRCICA. Part of my plan for
the centre is to increase our number of
employees, which we are in the process
of doing, and to train them, to share
experience and manage knowledge.
Amongst the projects we are currently
working on is an archiving project,
where we are developing and digitizing
the library. I have gathered the videos
with all our conferences since the 1980s
and brought technicians to extract the
sound and put the sound and images,
in higher quality, on CDs and other
software. So we are working on this to
be able to benefit from the heritage of
our conferences.

 

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