Qatar Market Update - September 2016

An arbitrator's pet peeves

As budget cuts take effect, a slow-down in construction projects has been evident in Qatar. Another significant trend emerging is that it is becoming even more difficult to secure payment under construction contracts. The resulting pressure on companies' cash flow is forcing parties to initiate formal dispute resolution proceedings in order to secure payment. For organisations that are contemplating arbitration, the following guidance from seasoned international arbitrator Peter Shaw will assist in avoiding potential pitfalls. Peter has undertaken close to 40 engagements as arbitrator, adjudicator and mediator. Here he shares eight key insights into the preferred course of an arbitration by parties.

1. Terms of reference: No time wasters please

   Far too often a heated debate arises at the beginning of an arbitration as to the composition of the terms of reference that will govern the case. The section that sets out the issues in the case, which is drafted by the parties, can run to several pages, which is entirely unnecessary. Whilst careful consideration of the issues involved in the case for each party is a must in order to avoid jurisdictional challenges later on, parties can and should be concise in their summary of issues, and it is recommended that such summary is limited to a handful of paragraphs at most.

   A tribunal does not want to spend an unnecessary amount of time refereeing such points between the parties. It is therefore prudent to include a provision in the terms of reference which makes it clear that the parties are not strictly bound by their summaries but can expand on them in their pleadings or memorials providing they do not raise new issues.

2. Be pragmatic

   Parties should only revert to the tribunal for procedural directions when they cannot sensibly agree matters between themselves.

3. Slow down

   It is increasingly common for a claimant to commence a case when his claims are not fully developed and/or are cast far and wide because he isn't yet sure which claims have teeth and which do not. The independent experts are then expected to whittle down matters in dispute during the case. As a result, parties incur additional time and cost which would have been avoided had the claimant taken advice early on and narrowed down the issues in dispute. Imprecise claims which are expected to be refined by experts can lead to an attack that the focus of the claims has changed, which may at worst give rise to a...