Rising Star of the Month- July 2020

Rising Star of the Month- July 2020

Rising Star of the Month- July 2020

Name of arbitrator practitioner:

Sadaff Shokatali Habib

Education, awards, and selected publications:

Education:

  • LLB Honours in Law- University of Kent, Canterbury
  • MSc in Construction Law and Dispute Resolution- British University in Dubai.

Award, recognition:

  • Recipient of AYA’s Africa’s 50 Most Promising Young Arbitration Practitioners Award 2020
  • Recognised as a Rising Star in the Legal 500 Middle East Construction

Selected publications:

I published a chapter on A New York Convention on international procedural law for arbitration- a thing of the future? in the CIArb book, A Brand New World: The Evolution and Future of Arbitration edited by Rowan Planterose and John Tackaberry QC.

Examples of articles I have authored:

  1. 24 March 2020, The Exchange, Arbitration in Tanzania: How an 85 year old landscape is changing!
  2. 21 June 2019, Kluwer Arbitration Blog, Tanzania faces a new ICSID claim under the terminated Netherlands BIT
  3. 17 January 2019, Kluwer Arbitration Blog, 2018 In Review- A Tug of War for International Arbitration in Africa
  4. 14 August 2018, Kluwer Arbitration Blog, Spotlight on Ethiopia as it annuls a Euro 20 million Arbitral Award

Countries qualified to practice:

  • New York, USA
  • UAE

Language(s):

  • English
  • Swahili
  • Urdu

Name of law firm:

Beale & Company (Middle East)

Area(s) of specialisation:

International arbitration; construction

Institutional affiliation(s):

  • Assistant Editor of the Kluwer Arbitration Blog
  • Member of the CIArb UAE Branch Committee
  • Buddy on the YICCA mentoring scheme

What influenced your interest in arbitration?

I started out as a corporate commercial lawyer and quickly realised this was not the area I saw myself practising long term. In 2009, with the recession affecting most businesses, our corporate clients started instructing us on arbitrations. This was my first exposure to arbitration as an alternative form of dispute resolution and once I had a flavour of it I realised this was the field I wanted to grow in. International arbitration fascinated me. The idea that parties could agree and empower an arbitrator to decide their dispute in a mechanism outside court was intriguing to me.

What are some of the challenges faced by young practitioners working on disputes in Africa? What do you think can be done to address these challenges?

Getting the right experience and opportunity to develop and harness your skills as a practitioner is a key challenge that young practitioners are facing. There is a perception that emerging arbitration practitioners from Africa because of their education and background (especially if this is largely home based) do not have the typical English/American education level and experience to work in international arbitration. This perception needs to be fiercely addressed.

It is not an easy issue to tackle. In my view, institutions such as the CIArb are doing a fantastic job in providing training to aspiring practitioners seeking to enhance their skills. Universities when teaching arbitration should also consider guest lecture workshops led by seasoned practitioners where practical skills such as drafting and case management can be taught. Established practitioners should actively mentor young practitioners and encourage their development by providing sincere and honest advice and direction.

How do you think arbitration can be developed to transform the construction industry in Kenya?

Kenya as a jurisdiction is supportive of international arbitration. It acceded to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”) in 1989 and implemented the Kenya Arbitration Act which was further amended in 2009. Kenya’s arbitration law is modelled on the UNCITRAL Model Law albeit with some amendments. This set a strong foundation for Kenya’s Vision 2030 where one of the goals is to develop infrastructure. This led to considerable foreign investment particularly Chinese investment in major construction projects in Kenya. As parties are from different countries, it is not surprising that international arbitration is the preferred method of dispute resolution for disputes arising out of construction.

In my view, there are two areas that could be improved to support construction disputes in Kenya:

  1. Support from the local courts/ enforcement of arbitral awards

The High Court in Kenya has jurisdiction to enforce arbitral awards. There have been instances where the High Court has refused enforcement of an arbitral award due to public policy; often the issue being that the arbitral tribunal did not properly apply the law agreed to by the parties. To enable Kenya to continue to rise as a jurisdiction supportive of international arbitration, Courts need to carefully consider the kind of precedent they are setting when they refuse enforcement. This is not to say that there will not be instances where an arbitral award contravenes public policy and should not be enforced. However, Courts need to exercise caution when refusing enforcement so as to assist the development and encourage the use of arbitration in Kenya.

  1. Use of local arbitration centres and arbitrators

Often where investment and commercial disputes do not involve the State, international companies refer their arbitration to the LCIA, or under the UNCITRAL or ICC Arbitration Rules.

Ideally, I would like to see a shift to using home-grown arbitration centres such as the Nairobi Centre for International Arbitration or using the CIArb Arbitration Rules of 2015. To create this shift, our local institutions need to continuously develop to be in tune with international arbitration institutions and strive to be at par with such institutions. Another key element that needs to be developed is a pool of educated, experienced, professional and integrity focused local arbitrators. A lot of the time, the arbitrators appointed in a construction arbitration will be foreign. This makes little sense where the dispute involves a local project and an African arbitrator would be better suited to it.

With lockdowns restricting travel and having to rapidly adapt to all interactions being online, how has this impacted on the dispute resolution process?

This period has undoubtedly been one of the most interesting times that the world and international arbitration has experienced. Where we once envisioned virtual arbitrations as a thing of the future, it suddenly became a reality. This has brought with it advantages and drawbacks. For example, on the one hand it has forced parties to revisit their case management and where possible even reduce the number of issues in dispute by engaging in amicable settlement. On the other hand, it has given recalcitrant respondents an opportunity to delay proceedings by either failing to agree to a virtual hearing, or engaging in protracted discussions as to the right platform to use to conduct the proceedings.

Regardless, virtual hearings have had a recognisable impact on disputes. If done properly, a virtual hearing can significantly reduce cost and time (for example cutting down travel and hotel costs of the parties and arbitrators). However, this benefit needs to be weighed against the reduced ability to read body language of a witness during cross-examination. Body language gives off important cues, such as nervousness when responding to a particular question which effective counsel can pick up on. It may be the case that a virtual hearing is not suitable in every arbitration.

The dispute resolution process has definitely evolved and it will be interesting to see how much further this evolution continues.

Do you have any mentors in the field of arbitration? What impact have they had on your career?

I do not have specific mentors as such but I am grateful that I have had the opportunity to work with experienced and open-minded arbitration practitioners who have been willing to give advice on different aspects of my career and have assisted me in harnessing my skills. Having a mentor is highly beneficial but if you do not have one, simply look around and I am sure you will find someone that you can ask your question to. Majority of the time, practitioners are more than happy to respond. I realise more each day that every interaction I have whether with a seasoned or a young practitioner allows me to learn something or consider something that I had not before, provided I am open to it. That is the key whether or not you are in a formal mentoring scheme; be open to learning and growing.

What advice do you have for other young arbitration practitioners?

Perseverance- this is my personal motto. The field of international arbitration is getting competitive by the day and it can be discouraging when you are starting out. Turn that discouragement into a force that will plough you through and if you keep at it long enough, you will shine.

 

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