Originally from The MENA Leading Arbitrators’ Guide to International Arbitration

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I. INTRODUCTION

Like elsewhere in the world, Arbitral tribunals in the Middle East and North Africa (MENA) exercise the powers conferred upon them within the bounds of the duties imposed on them.  These powers and duties can be defined in the arbitration agreement or through reference to institutional arbitration rules.  They are further subject to the laws of the arbitral seat.  These laws both empower and limit the tribunal in its conduct of arbitration proceedings. 

Neophytes of international arbitration in MENA will often first perceive a more pronounced predilection from parties to arbitration proceedings in favour of technical, sometimes spurious challenges to the arbitration process. This is in no way an exclusive feature of arbitration proceedings in the MENA region, and it can be found in many jurisdictions around the world, but it is nevertheless a feature which informs the way arbitral tribunals in the MENA region are often led to exercise their powers and duties.  Naturally, this perception has been magnified by regular reports of various MENA courts accepting such technical challenges to deny enforcement or annul awards on grounds, which some may view as favouring form over substance or an excessive interpretation of public policy principles.  The Courts’ approach, both perceived and real, has inevitably impacted upon the exercise of tribunals’ powers and duties in arbitration proceedings conducted in the MENA region.

This being noted, a balanced review of the current state of arbitration in the MENA region should first note that much progress has been made in the past two decades for the acceptance and development of arbitration in most MENA jurisdictions.  Governments have a played key role in adopting progressively arbitration friendly legislation.  This was not a given, and it is not an achievement which should underestimated if one recalls a prevailing distrust towards arbitration not long ago.