Originally from The MENA Leading Arbitrators’ Guide to International Arbitration

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I. INTRODUCTION

Deconstruction is not destruction! According to French philosopher Jacques Derrida who coined the term in its modern use, deconstruction consists in the analysis of the sedimented structures that form the discursive element. It is precisely in the conceptual contrast between the discursive and the intuitive reasoning methods that lie the distinctive features of the report released by the International Chamber of Commerce (ICC) on Financial Institutions and International Arbitration (the “ICC Report”).  Two years of research and countless interviews both of banking and of arbitration practitioners allow to affirm with certainty that the oft-cited financial institutions’ averseness to arbitration, abstractly stated, is rebutted by empirical evidence. The ICC Report evidences this finding and offers deep insights into the specialized world of banking and financial arbitration. 

And the matter is rapidly evolving in reflection of the fundamental changes in banking practices and regulation in the wake of the global financial crisis, the sovereign debt crisis, the digitalization of banking, and the new regulatory approach to bank resolution. With the new data disclosed in the ICC Report, arbitral institutions are in a strong position to engage with financial institutions and their regulators with a view to leading a reciprocal opening of arbitration to banking and of banking to arbitration. Both worlds will greatly benefit from the results.

The background to the project that led to the ICC Report, its methodology, and its main findings are summarized below (II). This chapter also discusses emerging trends in institutional arbitration which are likely to increase the use of arbitration in banking and financial disputes, including in the MENA (III), and examines the enforceability of split or hybrid clauses, commonly used in banking and finance agreements, before the MENA courts (IV).