Definitions of Arbitration

The term ‘arbitration’ has been given different yet similar meanings such as:

▪ Black’s Law Dictionary: “The reference of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing1 at which both parties have an opportunity to be heard.”

▪ Shorter Oxford English Dictionary: “Uncontrolled decision”; “The settlement of a question at issue by one to whom the parties agree to refer their claims in order to obtain an equitable decision.”

▪ Qatar Arbitration Law: “A legal consensual method to settle the dispute in lieu of resorting to the judiciary, whether the entity undertaking the arbitration procedures is, upon the agreement of the Parties, a permanent Arbitration Centre or otherwise.”

▪ UAE Arbitration Law: “A method that is regulated by Law, by which a dispute which has arisen between two Parties, or more is decided by a binding decision through an Arbitral Tribunal upon the agreement of Parties.”

▪ Halsbury's Laws of England: “Arbitration is a process used by the agreement of the parties to resolve disputes. In arbitrations, disputes are resolved, with binding effect, by a person or persons acting in a judicial manner in private, rather than by a national court of law that would have jurisdiction but for the agreement of the parties to exclude it. The decision of the arbitral tribunal is usually called an award.”

▪ In Re Curtis Arbitration: “Arbitration is an arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to the established tribunals of justice; and is intended to avoid the formalities, the delay, the expense, and vexation of ordinary litigation.”

▪ Chief Justice of India, N V Ramana (as he then was): “Arbitration is the best-suited dispute resolution mechanism for the commercial world. It is an effective alternative to traditional litigation and is regulated primarily by the terms previously agreed upon by the parties themselves. The process is consensual, confidential and the result is binding”.

▪ Martin Domke: “The process by which parties voluntarily refer their disputes to an impartial third person, an arbitrator, selected by them for a decision based on the evidence and arguments to be presented before the arbitration tribunal. The parties agree in advance that the arbitrator’s determination, the award, will be accepted as final and binding upon them.”

▪ René David: “A device whereby the settlement of a question, which is of interest for two or more persons, is entrusted to one or more other persons – the arbitrator or arbitrators – who derive their powers from a private agreement, not from the authorities of a State, and who are to proceed and decide the case on the basis of such an agreement.”

In short, arbitration is an excellent alternative to litigation. It is a time and cost-efficient method of resolving disputes where the parties oust the jurisdiction of the courts and instead take their dispute to one or more third persons chosen by them—in a word, the arbitrator(s). It provides the parties autonomy, and the proceedings are confidential in nature. It also provides for flexible procedures to be followed, unlike litigations, that can be agreed upon between the parties.

Disputants agree to submit their disputes to arbitrator(s) whose judgment they are prepared to trust. He or she listens to the parties, considers the facts and the arguments, and makes a decision. That decision is final and binding on the parties—and it is final and binding because the parties have agreed that it should be, rather than because of the coercive power of any state. Arbitration is an effective way of obtaining a final and binding decision on a dispute, or series of disputes, without reference to a court of law (although, because of national laws and international treaties such as the New York Convention, that decision will generally be enforceable by a court of law if the losing party fails to implement voluntarily).

The Qatar Court of Cassation noted that arbitration is a legal system by which a binding judgment is adjudicated in a legal dispute between two or more parties by a person or persons of third parties who derive their task from the agreement of the parties to the dispute.

The salient features of an arbitration can be said to be that:

▪ it is in the form of a written arbitration agreement.

▪ it is a private and non-national system of dispute resolution.

▪ the parties are relatively free to agree on how their disputes are resolved and can refer the dispute to arbitration.

▪ it is a fair resolution of disputes by an impartial tribunal that may be selected by the parties.

▪ it is without unnecessary delay or expense.

▪ there should be minimal court intervention.

▪ it results in a binding enforceable award.

With reference to the written arbitration agreement, what is considered written and what is not can itself be debatable given especially the innovation in technology. Therefore, some countries have gone to a great extent to clarify what constitutes a ‘written’ arbitration agreement in their national legislations.

Arbitration is not a mediation, adjudication, negotiation, litigation, expert determination or any other form of alternative dispute resolution. However, multi-tier arbitration clauses exist in which along with arbitration, mediation, negotiation or other forms of alternative dispute resolution may also be involved.

Generally, it is understood that the arbitrations are voluntary i.e., the parties give mutual and free consent to refer their disputes to arbitration in the form of an arbitration agreement, however, it could be compulsory as well.

In sum, arbitration has created certainty that commercial transactions could be upheld; it has provided a mechanism for private persons or States to bring claims against other private persons or States and it has even avoided war between states.

By: Vikrant Nehra

As the name suggests, sports arbitrations take place in relation to the disputes arising out of a sport. Broadly speaking, sports disputes tend to fall into two categories: commercial disputes; and disputes of a disciplinary nature. The former covers disputes relating to the execution of commercial contracts, such as those relating to player transfers, broadcasting rights, sponsorship rights or the staging of sporting events. The latter covers alleged breaches of a particular governing body’s regulations designed to protect, amongst other things, the integrity of its sport, such as doping and match-fixing.[1]

Since the Fédération Internationale de Football Association (FIFA) World Cup is currently underway in Qatar, sports arbitration has become a hot topic for arbitration practitioners based in and around Qatar. As is the case with any major project, sports-related arbitrations are bound to arise during and after the world cup. Though FIFA World Cup 2022 is seen as an attempt to bring Qatar on the world map but in the area of sports it had already made some progress, for instance, Qatar is home to the only World Anti-Doping Association accredited anti-doping laboratory in the region.[2]

Most sports arbitrations occur pursuant to mandatory arbitration provisions that athletes accept as a term of participation.[3] Thus, while athletes have freely accepted these terms, they do so without any real alternative.[4]

In contrast to commercial arbitral awards, the awards of sports tribunals are often published by sports governing bodies and arbitral tribunals.[5] The European Court of Human Rights held that proceedings of the Court of Arbitration for Sport (CAS) must under certain circumstances be public.[6]

Another feature of sports arbitration is the importance given to the harmonisation of the awards, particularly to disciplinary matters such as doping.[7] Moroney and Rahman state the need for harmony in sports decisions “is largely due to the overriding objective to facilitate consistency of decisions and public sanctioning, so as to uphold the integrity of sport in the eyes of fellow athletes and the general public.”[8] Another author writes that consistency in a worldwide game like Football “would be impossible to achieve, or at least be greatly eroded if disputes were instead subject to the courts of FIFA’s 211 member associations.”[9]

The Applicable Rules

1.     The FIFA Statutes

FIFA has given exclusive jurisdiction to the CAS to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, football agents and match agents.[10] The recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations.[11] The disputes shall be decided by applying various regulations of FIFA in addition to Swiss law.[12] However, a recourse may only be made to the CAS after all other internal channels have been exhausted[13] except for (i) violations of the Laws of the Game; (ii) suspensions of up to four matches or up to three months; and (iii) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of an association or confederation may be made.[14]

An obligation is also put on the confederations, member associations and leagues to recognise the CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by the CAS thus, giving more sanctity to the decisions of the CAS.[15]

2.     Regulations for the FIFA World Cup Qatar 2022

Similar to Article 58 of the FIFA Statutes, the Regulations for the FIFA World Cup Qatar 2022 excludes the jurisdiction of the ordinary court of law and gives exclusive jurisdiction to FIFA.[16] It further provides, similar to the FIFA Statutes, that after exhausting all the internal channels at FIFA, the sole recourse to the Participating Member Associations and Delegation Members shall be the CAS and the arbitration proceedings shall be governed by the CAS Code of Sports-related Arbitration.[17] However, the exhaustion of the internal channels is not required where the result of such internal review is obvious from the very outset since in such cases the duty to exhaust legal remedies would only serve as a barrier and delay access to justice.[18]

3.     Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round

To take into account the circumstances of each of the events, the CAS establishes special procedural rules for each occasion.[19] Hence, for the FIFA World Cup 2022, it has published the Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round.

The CAS sets up non-permanent tribunals, which it does for the Olympic Games, the Commonwealth Games or other similar major events.[20] The first ad hoc division of the CAS was created for the Atlanta Olympic Games in 1996. Similarly, for the FIFA World Cup 2022, the CAS has set up an ad hoc division in Qatar for quick resolution of disputes.[21] Though the CAS ad hoc divisions are present in the FIFA World Cup since 2006 but this is the first time that a CAS ad hoc panel is based in a world cup host nation.[22] In the previous edition of the world cup, fifteen ad hoc procedures were commenced.[23] This figure is expected to rise given the fact that this world cup has been marred by controversies since the time Qatar won the bid in 2010. At least two disputes have already surfaced in relation to this world cup.[24]

Ideally, the panel should give a decision within forty-eight hours of the lodging of the application though in exceptional circumstances this time limit may be extended.[25] This promptness in decision making ensures that the tournament runs on schedule without any hiccups. For instance, it might be necessary to determine the eligibility of a player or a team before an upcoming match or event.[26] While on the other hand, the quick resolution also means a shorter timeline for submissions which is criticised especially by lawyers as it may impact the right to have a fair hearing of the parties[27] and also brings along with it sleepless nights for the legal team working on the dispute. The decision is enforceable immediately and may not be appealed against or otherwise challenged thus making it binding on the parties to the dispute.[28]

Leading Sports Arbitration Institutions in Qatar

1.     CAS

The CAS is one of the preferred forums for the resolution of these kinds of disputes. CAS is considered to be “the true supreme court of world sport”[29] and an independent institution that settles sports-related disputes through arbitration and mediation.[30] It was established in 1984 but it was not until 1986 that the first case was submitted to the CAS. The CAS is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS), a 20-member body that appoints its Director-General, facilitates arbitrator

appointments and hears challenges against the arbitrators.[31] Any disputes directly or indirectly linked to sport may be submitted to the CAS. Since its head office is in Lausanne, Switzerland, the seat of all the arbitrations administered by CAS is also Lausanne.[32]

The CAS has three divisions (i) the Ordinary Division which operates as a tribunal of the first instance in which the parties have agreed to submit the dispute to the CAS; (ii) the Appeals Division which operates primarily to rule on disputes arising from federations, associations or other sports-related bodies; and (iii) the Anti-Doping Division which operates especially for the doping-related disputes as a first instance authority or as a sole instance.[33] It is the final court of appeal for sporting federations such as FIFA and the Union of European Football Associations.[34] One of the main objectives of the CAS is to provide an alternative to the national courts that are often overburdened with litigations and lack specialised knowledge in this area.

2.     Qatar Sports Arbitration Foundation and Qatar Sports Arbitration Tribunal

According to its website, the Qatar Sports Arbitration Foundation (QSAF) is an independent organisation with the primary purpose of resolving sport-related disputes within Qatar through arbitration and mediation. The incorporation of the QSAF came as a result of the cooperation between four sports entities in Qatar, namely: the Qatar Olympic Committee, the Qatar Football Association, the Qatar Stars League, and the Qatar Players Association.[35] It commenced operating in 2019.

The CAS has signed a memorandum of understanding (MoU) with the QSAF.[36] According to the MoU, QSAF will be the headquarters of the CAS during the FIFA World Cup 2022.

The Qatar Sports Arbitration Tribunal (QSAT) operates under the QSAF. It is incorporated as a “private institution for public benefit… with the primary purpose of resolving disputes in the

sports sector through arbitration and mediation”.[37] Its governance structure is modelled on the CAS, with an Ordinary Arbitration Division and an Appeals Arbitration Division.[38]

The QSAT can arbitrate disputes of both domestic and international nature.[39] The QSAT contributes to Qatar’s development of a sophisticated and diverse legal landscape that enhances its overall business and commercial environment.[40] Though in its infancy, the QSAT has already delivered awards on some interesting issues. For instance, in one of its awards, it was held that the relationship and the nature of the contract between the players and the sports club is a labour contract governed by labour law and the concerned regulations.[41]

[1] See, Types of Arbitration, available at: https://www.lexology.com/library/detail.aspx?g=5e4ab4b0-bb64-435d-b2f1-437384179d66 (last visited on December 10, 2022).

[2] Qatar to play a leading role and to be an internal hub for sports law, available at: https://www.businessstartupqatar.com/news/qatar-to-play-leading-role-and-be-internal-hub-for-sports-law/ (last visited on December 6, 2022).

[3] See generally, Compulsory consent in Sports Arbitration: Essential or Auxiliary, available at: http://arbitrationblog.kluwerarbitration.com/2016/04/12/compulsory-consent-in-sports-arbitration-essential-or-auxiliary/ (last visited on December 6, 2022).  

[4] Resolving Sports Disputes in Qatar, available at: https://knowledgehub.josoorinstitute.qa/wp-content/uploads/2021/06/Zachary-Calo-Resolving-Sports-Disputes-in-Qatar.pdf (last visited on December 6, 2022). 

[5] Id.

[6] Judgment of the European Court of Human Rights in Mutu & Pechstein v Switzerland (2 October 2018, nos. 40575/10 and 67474/10).

[7] Resolving Sports Disputes in Qatar, available at: https://knowledgehub.josoorinstitute.qa/wp-content/uploads/2021/06/Zachary-Calo-Resolving-Sports-Disputes-in-Qatar.pdf (last visited on December 6, 2022).  

[8] An introduction to sports arbitration in the UAE, available at: https://www.lawinsport.com/topics/item/an-introduction-to-sports-arbitration-in-the-uae (last visited on December 6, 2022).

[9] Nick De Marco, Football and the Law (Bloomsbury, 2018) p. 484.

[10] See, FIFA Statutes, article 56 paragraph 1.

[11] See, FIFA Statutes, article 58 paragraph 2.

[12] See, FIFA Statutes, article 56 paragraph 2.

[13] See, FIFA Statutes, article 57 paragraph 2. See also Code of Sports-related Arbitration, article R52.

[14] See, FIFA Statutes, article 57 paragraph 3.

[15] See, FIFA Statutes, article 58 paragraphs 1 and 3.

[16] See, Regulations for the FIFA World Cup Qatar 2022, article 7 paragraph 2.

[17] See, Regulations for the FIFA World Cup Qatar 2022, article 7 paragraph. See also Code of Sports-related Arbitration, article R52.

[18] Royal Standard de Liège v. FC Porto (Player T.), CAS 2016/A/4720. See also George Yerolimpos v. World Karate Federation (WKF), CAS 2014/A/3576.

[19] CAS, Frequently Asked Questions, available at: https://www.tas-cas.org/en/general-information/frequently-asked-questions.html (last visited on December 6, 2022).

[20] CAS, Frequently Asked Questions, available at: https://www.tas-cas.org/en/general-information/frequently-asked-questions.html (last visited on December 6, 2022).

[21] See, Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round, article 2.

[22] Qatar will benefit immensely from MoU with CAS, available at: https://www.insideqatar.com/qatar-will-benefit-immensely-from-mou-with-cas/ (last visited on December 6, 2022).

[23] CAS, STATISTICS, available at: https://www.tas-cas.org/fileadmin/user_upload/CAS_statistics_2020.pdf (last visited on December 6, 2022).

[24] Chile and Peru argued that the Ecuadorian player Byron Castillo was Columbian and illegally played in the qualifying matches. The Peruvian Football Federation contended for Ecuador to be excluded from the tournament and be replaced by Peru, while Chile's football association wanted the eight games Castillo played in to be declared as forfeited. Though the CAS observed that false information was used on Castillo’s documents and imposed a fine of 100,000 Swiss francs (£87,600) and a three-point deduction on Ecuador going into the next World Cup qualifying round but Ecuador was able to retain its spot at the world cup as the CAS held that the nationality of a player is determined by national laws, Castillo was free to play as the Ecuadorian authorities acknowledged him as an "Ecuadorian national". However, this controversy had an indirect impact and Castillo was left out of the squad of the Ecuadorian team for the world cup. The second such instance is the decision of the Deutscher Fußball-Bund e.V. to take FIFA to the CAS over FIFA’s ban on OneLove armbands meant for diversity and inclusion.

[25] See, Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round, article 19.

[26] For e.g., the infamous case of Russian skater Kamila Valieva in the Beijing Olympics 2022. See, CAS OG 22/08 International Olympic Committee (IOC) v. Russian Anti-Doping Agency (RUSADA), CAS OG 22/09 World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA) and Kamila Valieva and CAS OG 22/10 International Skating Union (ISU) v. Russian Anti-Doping Agency (RUSADA), Kamila Valieva and Russian Olympic Committee (ROC).

[27] Fifa and CAS set up an ad hoc division to handle World Cup disputes, available at: https://www.monitor.co.ug/uganda/sports/sports-columnists/fifa-and-cas-set-up-an-ad-hoc-division-to-handle-world-cup-disputes-4009558 (last visited on December 6, 2022).

[28] See, Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round, article 22.

[29] Tribunal Federal [TF] [Swiss Federal Tribunal] May. 27, 2003, III Arrets du Tribunal Federal Suisse [ATF] 129 445 (Switz.).

[30] CAS, Frequently Asked Questions, available at: https://www.tas-cas.org/en/general-information/frequently-asked-questions.html (last visited on December 6, 2022).

[31] Sports Arbitration - CAS, TCAS and Everything In Between, available at: https://www.lexology.com/library/detail.aspx?g=9fd3008d-c62e-4512-9615-95be9bd8a1d4 (last visited on December 6, 2022).

[32] See, Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round, article 7.

[33] Code of Sports-related Arbitration, article S20.

[34] Sports Arbitration - CAS, TCAS and Everything In Between, available at: https://www.lexology.com/library/detail.aspx?g=9fd3008d-c62e-4512-9615-95be9bd8a1d4 (last visited on December 6, 2022).

[35] QSAF, Overview, available at: https://www.qsaf.qa/en/overview/ (last visited on December 6, 2022).

[36] Qatar will benefit immensely from MoU with CAS, available at: https://www.insideqatar.com/qatar-will-benefit-immensely-from-mou-with-cas/ (last visited on December 6, 2022).

[37] Statutes of the Qatar Sports Arbitration Foundation, article 2.

[38] Statutes of the Qatar Sports Arbitration Foundation, article 8.

[39] For e.g., FIFA Regulations on the Status and Transfer of Players, Rule 22(b) provides that in “employment-related disputes between a club and a player of an international dimension; the aforementioned parties may…explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement.”

[40] Resolving Sports Disputes in Qatar, available at: https://knowledgehub.josoorinstitute.qa/wp-content/uploads/2021/06/Zachary-Calo-Resolving-Sports-Disputes-in-Qatar.pdf (last visited on December 6, 2022).  

[41] QSAF arbitral decision no 3/2019, available at: https://www.qsaf.qa/wp-content/uploads/2020/09/%D8%A7%D9%84%D9%82%D8%B6%D9%8A%D8%A9-003-2019-%D8%AD%D9%83%D9%85-%D8%A7%D9%84%D8%AA%D8%AD%D9%83%D9%8A%D9%85_Redacted.pdf (last visited on December 6, 2022).    

Ad Hoc Versus Institutional Arbitration

Author: Vikrant Nehra

Arbitration is an excellent alternative to litigation. It is a time and cost-efficient method of resolving disputes where the parties oust the jurisdiction of the courts and instead take their dispute to one or more third persons chosen by them—in a word, the arbitrator(s). It provides the parties autonomy, and the proceedings are confidential in nature. It also provides for flexible procedures to be followed, unlike litigations, that can be agreed upon between the parties.[1] Arbitration can be broadly categorized into:

Ad hoc Arbitration

This kind of arbitration is generally independent of any arbitration institution.[2] Ad hoc arbitrations are particularly more appropriate for disputes involving governments. It allows the parties more flexibility and provides them with more control over the arbitration. Generally, ad hoc arbitration clauses are longer and more detailed than institutional arbitration clauses, especially in terms of the procedure for the arbitration such as how the arbitrators are to be appointed, how many arbitrators should be there etc. United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules are the most common suspect for the conduct of this kind of arbitral proceedings.[3] If the parties do not agree on any rules or the procedure, usually default provisions of the law of the place of arbitration will be applicable.[4]

The difference between ad hoc and institutional arbitration has been described as the difference between a ‘tailor-made’ suit and one that is bought ‘off the peg’ if the parties cooperate.[5] An added advantage of ad hoc arbitration is that if an arbitral institute is not involved then the cost of the arbitrations can be reduced. On the other hand, one of the disadvantages is that only when an arbitral tribunal is in existence or a set of rules has been established, it will be able to proceed if one of the parties fails or refuses to play its part in the proceedings.[6]

Institutional Arbitration

In this kind of arbitration, the parties must select and refer their dispute to an arbitration institution and its rules in their arbitration agreement. When a dispute arises, the named arbitration institution administers and manages the smooth conduct of the arbitration from the appointment of arbitrators to (sometimes) scrutinize the arbitral awards under its rules of arbitration. This form of arbitration is increasingly being preferred by the parties over ad hoc arbitrations.[7] Some Asian nations ambitious to become a robust hub for international arbitration like India have also made provisions in their domestic law giving preference to institutional arbitrations.[8]

An important advantage of institutional arbitration is that it avoids the discomfort of the parties and the arbitrators discussing, agreeing and fixing their remuneration. This means that the arbitrators can maintain a certain level of material detachment from the parties.[9] The arbitration may proceed, and an award may be made, even if a party fails or refuses to take part in the arbitration. Moreover, a leading international arbitration commentator argues that the specialized staff of an arbitral institution provide better service than ad hoc decisions by national courts with little, if any, experience or institutional resources for such matters.[10]

While on the other hand, the disadvantage of institutional arbitration is the unrealistically short timelines due to which the respondent(s) is almost always pressed against time. The requirement of the advance payment up-front by the arbitral institution can also be a cause of delay especially when that is the intention of the respondent(s), and it may refuse to pay its share.

Another difficulty generally faced by the respondent(s) is that the date of submission of the answer to the request for arbitration (the “Answer) or response to the notice of arbitration (the “Response”) is fixed by the rules of the arbitration institution but the date of payment for the advance fee may be extended from time to time. Sometimes, the date for the payment of the advance fee may fall after the last date for the submission of the Answer or the Response. However, in this situation, the respondent(s) might not even be inclined to file its Answer or Response till the time the claimant pays the required fee because if the claimant fails to pay it, the arbitration institution will not proceed with the arbitration. If this is the case, by the time the claimant would pay the fee, the last date for submission of the Answer or Response might have already lapsed and the respondent(s) might no longer be allowed to file its Answer or Response.

A counter to this could be that, in an ideal situation, the respondent(s) should simply pay its share of the advance fee, or the respondent(s) should file the Answer or Response before the last date irrespective of the fact that the claimant pays the required fee before that date or not. However, if the respondent(s) file its Answer or Response pending the payment of the required fee by the claimant but later the claimant fails to pay the required fee and consequently, the arbitration is discontinued then it would be a wastage of the costs incurred by the respondent(s) in relation to its Answer or Response. Therefore, perhaps the rules and the approach of the arbitration institutions should be more flexible to take into account the practical difficulties that may arise during the arbitration.

In sum, institutional arbitrations are becoming increasing popular in most parts of the world and are expected to continue doing so. For instance, India alone has thirty-six domestic and regional arbitration institutions.[11]

[1] Arbitration: In a Nutshell, available at: https://www.legal500.com/developments/thought-leadership/arbitration-in-a-nutshell/ (last visited on October 11, 2022).

[2] Jeffrey Maurice Waincymer, Procedure and Evidence in International Arbitration, (Kluwer Law International 2012) p. 210 (“[some essentially ad hoc arbitrations still provide for resort to be had to an institution for certain key matters such as appointment of a tribunal.”)

[3] 2021 International Arbitration Survey, p. 9 (the UNCITRAL Arbitration Rules were amongst the most frequently used ad hoc regimes by 76% of the respondents).

[4] Julian D. M. Lew, Loukas A. Mistelis, et al., Comparative International Commercial Arbitration, (Kluwer Law International 2003) p. 32.

[5] Nigel Blackaby, Constantine Part asides, et al., Redfern and Hunter on International Arbitration (6th ed.), (Kluwer Law International; Oxford University Press 2015) p. 43.

[6] Id. at 44.

[7] 79% of the arbitrations are administered by the arbitration institutions (2015 International Arbitration Survey, p. 17).

[8] The (Indian) Arbitration and Conciliation Act, 1996 was amended in 2019 to provide for the appointment of arbitrators exclusively by the arbitral institutions. The erstwhile provisions provided this power also to the courts (section 11). Section 43-I was inserted for grading the arbitral institutions.

[9] Julian D. M. Lew, Loukas A. Mistelis, et al., Comparative International Commercial Arbitration, (Kluwer Law International 2003) p. 37.

[10] Gary B. Born, International Commercial Arbitration (2nd ed.), (Kluwer Law International 2014) p. 170.

[11] What’s in a Name? The Story of The New Delhi International Arbitration Centre (Amendment) Bill, 2022, available at: https://www.lexology.com/library/detail.aspx?g=0cf39901-5db8-4e7e-9685-67015ea8b78f (last visited on October 11, 2022).

Compulsory Liquidation of Commercial Companies in The State of Qatar.

Author: “Mohammad Mufid” Ratib Qurashi.

What is Liquidation?

Liquidation is the process of shutting down a company and distributing its assets to claimants. It usually occurs when a company is insolvent or is unable to pay its debts. When a company's operations halt, its leftover assets are used to pay creditors and shareholders in a certain order that is identified in multiples Laws and Regulations. Liquidation can be both compulsory and voluntary; Compulsory liquidation happens when a court orders the company's liquidation due to negligence or non-compliance to certain commitments. Whilst the voluntary Liquidation takes place when the shareholders of a company decide to terminate operations due to lack of profitable business or due to the failure of the company to complete its projects or to achieve the objectives of its establishment. However, this article will focus on compulsory liquidation of commercial companies, a topic that was regulated in the Qatari Commercial Companies Law number (11) of the year 2015.

The Law:

Liquidation and Dissolution of companies are regulated in Chapter (11) of the Law number (11) of the year 2015; the first section of this chapter discusses dissolution whilst the second section discusses the provisions of liquidation.

It is stipulated that companies shall immediately enter liquidation upon dissolution. It shall keep its legal identity to the extent essential for the liquidation during the liquidation phase. The phrase "under liquidation" should be clearly displayed next to the company's name throughout this phase. Generally, the Liquidation shall be done according to the regulations previously sat in the company’s article of association. However, if the articles of association did not include such provisions, this section of the Law shall apply on any liquidation process. According to the Law, when a business dissolves, its managers and directors’ must hand over control to the liquidator. The liquidation procedure should be specified by the competent Court, and one or more liquidators must be appointed. In addition, the liquidator's mission will continue even if the partners of the company die, declare bankruptcy, become insolvent. Fees of the liquidator must be determined by the competent court. If more than one liquidator is appointed, they must operate jointly unless it is indicated otherwise. Liquidators are equally and severally liable for damages caused by their actions or inactions to the firm, its partners, and third parties.

The law obliges the liquidators to commence all the work necessary to complete the liquidation process. However, the following is mentioned explicitly in article (310):

·        Representing the firm in court and resorting to mediation and arbitration.

·        Meeting the company's obligations, and the fulfilment of all necessary processes to maintain the company's assets and interests.

·        Attempting to sell the firm's assets at the greatest price feasible and collecting debts owing to the company from third parties.

The liquidator can’t engage in new work unless it is necessary to finish pre-existing work. If the liquidator exceeds the scope of the liquidation, he is personally liable for it. With regards to the company’s debts’, all due dates for the company's debts will be void upon dissolution. All creditors must be notified by registered letters that the liquidation procedure has begun and they must be invited to submit their claims. The liquidator shall comply with the following order stipulated by the Law during the liquidation process:

1.     liquidation costs, including the liquidator's fees.

2.     The wages and salaries of the company's employees.

3.     The amounts owed to the State.

4.     The rent that the company owes to the landlord for any rented premises.

5.     Other sums due in accordance with applicable laws.

Without the approval of a competent court or the Minister, the company's liquidation duration should not exceed three (3) years.

For further information don’t hesitate to contact any of our professionals at Alhababi Law firm. 

Divorce for Lack of Sustenance

Author: Islam Al-Bayed

Allah says ((Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth.)).

The objective of the divine legislation is to immunize the spouses within the Shariah regulations which came in our Holy Qur’an, the most important of which is to keep the wife financially sustained and to prevent the harm inflicted on the wife if the husband refrains from spending. The Qatari family law has confirmed this principle by enabling a woman to demand divorce from her husband for reasons specifically stipulated in the law.

I would in the beginning like to define sustenance in Fiqh (Islamic jurisprudence) which is what is required of money to secure the necessities for survival.

It was narrated by Prophet Mohammed, may God’s prayers and peace be upon him that he said in his farewell sermon: “Fear God with regard to women, for you have taken them with the trust of God and made their private parts permitted (been made Halal) by the word of God, and they have upon you their sustenance and their clothing in a reasonable manner.”

The text of Article 137 of Family Law No. (22) of the year 2006:

“If the wife requests divorce for lack of sustenance from her present husband who has no apparent money, and he refused to spend, and does not plead insolvency, and insists on not spending, it is decided to separate them immediately.”

The evidence between the Qur’an, Sunnah, Fiqh and the law is one, and that is the unanimity that the wife’s sustenance is an obligation to her by her husband. If the husband refused to spend for his wife who has given herself to him, and his refusal is without legal (Shariah) justification, he is unjust to her and the judge obligates him to pay it, if he is affluent and is obstinately refusing, then the wife may ask for a divorce for lack of sustenance.

But if his insolvency is not proven, the judge gives him a period of no more than three months. If he refused and the three months have passed without paying the sustenance and he has not spent, the judge will divorce him.

This is confirmed by the text of Article 138:

“If the wife requests separation (divorce) for lack of sustenance from her present husband who has no apparent money, and he refused to spend, and he claims and proves insolvency, the judge shall give him a period not exceeding three months, and if he does not spend, he separates them.”

We will not neglect to talk about the husband who claimed inability. In this case, proof is required. If he proves his inability, his ruling is the ruling on insolvency, and if he does not prove it, he is ordered to spend or divorce, pointing to the text of Article 139:

“If the wife requests separation, for lack of sustenance, from her present husband who has no apparent money, and he refused to spend, and claims insolvency, and does not prove it, the judge shall set a deadline not exceeding one month for him to spend, otherwise he separates them after the term.”

The text of Article 141:

If the wife requests separation, for lack of sustenance, from her absent husband in an unknown place, and he has no apparent money, and he did not leave her money from which she can spend, the judge separates them.

The text of Article 142:

Taking into account what is stipulated in the two previous articles, the judge does not separate (divorce) the spouses until after the case is proven, and the wife has taken the judiciary oath that there is lack of sustenance.

For further information about Divorce, Don’t Hesitate to contact any of our professionals at Alhababi Law Firm!

Qatar Free Zones

Author: ”Mohammed Mufid“ Ratib Qurashi

Introduction:

Attracting foreign investments is a goal that each and every state in the world is vigorously working hard to achieve. Consequently, and since Qatar is one of the fastest Developing states in the region, the strategy of attracting investments has been adopted by the state which led to bold decisions, measures and procedures.

Qatar Free Zones Authority (QFZA):

Qatar Free Zones Authority (QFZA) was founded in 2018 to develop and manage Qatar's new free zones. The Authority was constituted by Legislative Decree Number (21) of 2017, as amended by Law Number (34) of 2005. It was established as an autonomous agency in 2018 with the mission of fostering economic growth and establishing a cluster of world-class free zones in Qatar.

Why QFZ?

Companies established in the QFZ have the following advantages:

·       No customs charge

·       No corporation taxes

·       100 percent foreign ownership

·        No individual income taxes.

·       Renewable 20-year tax holiday.

Moreover, the QFZA has approved a broad range of activities that entities wishing to establish in the Free Zone may engage in, including logistics and warehousing, industrial products and services, food and beverages and consumer goods, information technology services, leisure and hospitality, professional and business services, and marine activities and services.

For further information in regards with QFZ, our professionals at Alhababi Law Firm are always willing to help and assist.

Rejecting a photocopy of an original document in the scope of Qatari Legislations.

Author: Mohamed Zied Boussetta

Contributor: "Mohammad Mufid" Ratib Qurashi

The Qatari legislator mentioned the term “rejection” in article (374-Repeated-subarticle (1)) from the civil and commercial procedure law -2019 amendments, while the legislator mentioned the word explicitly, a definition of the word “rejection” was not illustrated, referring to various dictionaries, the word rejection means the act of not accepting, believing or considering something.

It has always been the case where parties submit a photocopy of an original document to the court, upon that, the party the document is submitted against has the right to reject the photocopy in order to weaken its opponents position by questioning the authenticity of the aforementioned document, furthermore , the party could ask the court to oblige the party submitting the photocopy to submit the original document in order for the court to consider it valid and authentic and in such scenario, if the party submitting the photocopy couldn’t manage to submit the original document, the court must not consider the photocopy as an effective document nor could rely on it in any decision related to the case.

Such acts by courts are consistent and approved by the highest degree court in the country, the court of cassation and in many precedents have established the legitimacy of such act whereby we mention some of them as follows:

·        Judgement number (257/2015)-commercial and civil circuit:

“If the photocopy submitter claims that the original document is attached to another case or is filed with one of the official authorities, the court must enable him to obtain it or an identical copy whenever his opponent rejects the photocopy “.

·        Judgement number (441/2017)-commercial and civil circuit:

“If the document is submitted as a scanned image of automatic data messages or E-mails, it gains the authenticity of proof that is equal to documents that are transcribed and affixed to a written signature and the documents remains resistant to the opponent’s rejection and the request of submitting the original document cannot be made, as long as it has been proven that the document contains nothing but a transcript of what the

 E-mail or Electronic medium in question contains.”

·        Judgement umber (275/2016)-commercial and civil circuit:

“ The customary document is considered to have been issued by the person who signed it unless he explicitly denies what is attributed to him in terms of handwriting, signature, stamp or fingerprint, meaning that the signature, the stamp imprint or the fingerprint is the only legal source to give authenticity to the customary paper, meaning that if the issuer denied the existence of his signature, stamp or fingerprint then the photocopy can’t be used for further proof, but the second sub-article of article 200 of the civil and commercial procedural law states that if a the court discussed a the subject matter of a customary document, then none of the parties can question the authenticity of the photocopy by denying the signature, stamp or fingerprint, this article can be justified as the court doesn’t discuss any document unless the case parties have reviewed it and took their full right of objecting on any document submitted, in other words parties have implicitly agreed on the authenticity of the documents submitted, while in this stage of litigation, this denial is only used to adjourn the hearings and decisions, in other words wining time, and this was confronted by the legislator in the aforementioned article.

Last but not least, the burden of proof relies upon who denies the signature, stamp or fingerprint according to article 236 of the civil and commercial procedural law.

Voluntary Liquidation of Commercial Companies in the State of Qatar.

Author: “Mohammad Mufid” Ratib  Qurashi

Introduction:

After discussing the provisions of Compulsory Liquidation stipulated in the Qatari Commercial Companies Law (CCL) in our former article, it is of a great importance to introduce the reader to the concept of Voluntary Liquidation of Commercial Companies. Going through the Qatari (CCL), a brief overview of the Voluntary Liquidation process provisions will be delivered in this article.

What is Voluntary Liquidation?

Liquidation is the process of shutting down a company and distributing its assets to claimants. It usually occurs when a company is insolvent or is unable to pay its debts. When a company's operations halt, its leftover assets are used to pay creditors and shareholders in a certain order stipulated by the governing laws. Voluntary liquidation takes place when the shareholders of a firm decide to terminate operations due to lack of profitable business or due to the failure of the company to complete its projects or achieve the objectives of its establishment.

Article (291/5) of the CCL states that a company will be dissolved for the following reasons: “5) The partners unanimously agree to dissolve the company before the end of its term, unless the Company’s Contract states its dissolution by a certain majority”. The legislator explicitly provided the right of Company’s shareholders to dissolve the company, which leads to the process of voluntary liquidation as article (304) of the CCL states that: “The company shall enter liquidation as soon as it is dissolved.”.

The Law:

During the Liquidation process, the company shall keep its legal identity to the extent essential for the liquidation during the liquidation phase. The phrase "under liquidation" shall be clearly displayed next to the company's name throughout this phase. Although the Law stipulates that managers lose their authority after the dissolution of the company, they shall remain in charge and be considered as liquidators before third parties until a liquidator is appointed. The provisions mentioned in articles (307-321) of the CCL shall apply on the liquidation process unless it was mentioned otherwise in the company's memorandum of association, or upon the shareholders’ agreement upon dissolution. The appointment of liquidator/liquidators shall be upon a decision by the partners or a general assembly ordinary majority. It is important to note that the liquidator's job does not end with the death, bankruptcy, or insolvency of the shareholders, even if appointed by them.

 The liquidator shall be dismissed in the same method as he was assigned. Dismissal of the liquidator should involve the appointment of a successor liquidator. The liquidator's dismissal must be declared in writing and will take effect solely against third parties from the date of the declaration.

The Liquidator is obliged to submit the following to the shareholders/general assembly of the company:

·       During three months after starting his work, the liquidator must reply to the shareholders/general assembly enquiries (clarifications) regarding the liquidation process.

·       If the liquidation process takes more than one year, the liquidator must provide the shareholders/general assembly with a balance sheet, a profit and loss account summary and a report of the liquidation works.

·       The liquidator shall provide a final statement to the shareholders/general assembly at the stage of completing the liquidation procedure.

The period of the company's liquidation shall not exceed three (3) years unless approved by the competent court or the Minister.

We will always be glad to provide you with further information and details relevant to Liquidation Processes and developments in the State of Qatar at Alhababi Law Firm!

Qatar’s Ministry of Transport and Communication latest Regulations on the Protection of Personal Data Privacy.

Author: “Mohammad Mufid” Ratib Qurashi.

Introduction:

Following the issuance of Law number 13 of 2016 on the Protection of Personal Data Privacy (PDPP Law), the Ministry of Transport and Communications (MOTC) released regulatory recommendations on Personal Data Privacy in January 2021. In addition to clarifications, it provides a collection of guidelines, controls, and checklists to ensure users compliance with the Law. Furthermore, it also includes guidance for individuals to become more aware of their rights and responsibilities. After discussing the (PDPP) Law in our previous article, the key features of the 2020 regulations will be reviewed briefly in this article.

·    What personal data processing do these guidelines apply to?

The guidelines apply to any personal data processed electronically, via a combination of electronic and non-electronic techniques, or via non-electronic means in advance of electronic processing. They apply to every entity that handles personally identifiable data.

·      How shall the Regulated Entities apply these standards?

The regulations highlight that any data controller shall comply with the law and the regulations if the information collected is not personal nor related to family or household purposes. A risk-based approach based on the key privacy principles mentioned in the regulations shall be adopted by controllers that need to comply. Regulated entities must evaluate how they process personal data and accept accountability for their actions.

 A Personal Data Management System (PDMS) for the user’s data and privacy protection might be needed in some scenarios as per the regulations. However, the guidelines didn’t limit or determine any certain measures that regulated businesses should take. The strategy adopted by the regulated businesses and the strategy’s execution shall be determined by the business itself.

·       How will individuals benefit and commit to the guidelines?

The PDPP Law outlines people's rights and regulated entities' obligations in regards with personal data. Individuals have the right to have their data protected and processed legitimately. Moreover, individuals can expect their personal data to be treated in compliance with the PDPP Law, and if they think their data is not protected or used lawfully, they can submit a complain to the CDP and controllers must enable them to complain about it directly to the controller. The guidelines assist individuals in understanding when and how to exercise their rights, how to file complaints to controllers and CDP, and how CDP may investigate them.

·       What topics do the guidelines cover?

¨     Controllers and Processors.

¨     Data Privacy by Design and by Default.

¨     Data Privacy Impact Assessment (DPIA).

¨     Electronic Communications for Direct Marketing.

¨     Exemptions applicable to Data Controllers.

¨     Individual complaints and rights.

¨     Personal Data breach notifications.

¨     Personal Data Management System (PDMS).

¨     Principles of Data Privacy.

¨     Privacy Notice.

¨     Record of Processing activities.

¨     Special nature processing.

Regulated Entities should check the regulations’ updates constantly to ensure they are up to date with the newest guidelines.

For further information in regards with the PDPP Law and CDP regulations, Don’t Hesitate to contact us at Alhababi Law Firm.

Bankruptcy Provisions in The Qatari Legislations.

Author: ‘Mohammad Mufid’ Ratib Qurashi

Introduction:

Bankruptcy is a legal process that is initiated when an individual or corporation is unable to repay their existing obligations. The bankruptcy procedure begins with a petition filed either by the debtor or on behalf of creditors. All of the debtor's assets are valued and assessed, and the assets may be utilized to repay a portion of the debt. Bankruptcy allows an individual or business to restart by waiving unpayable debts and enabling creditors to seek repayment based on liquidated assets. In the State of Qatar, Bankruptcy provisions are regulated in both Law No. 27 of 2006 Promulgating the Trading Regulation Law and Law No. 11 of 2015 Promulgating the Commercial Companies Law. Articles relevant to bankruptcy in both Laws will be introduced and explained briefly in this article.

Bankruptcy in the Trade Law (Law No. 27 of 2006 Promulgating the Trading Regulation Law):

Bankruptcy is regulated in the 6^th and last part of the Trade Law starting from article (606) and until the last article of the Law – article (846) –, it is divided into six chapters as follows:

●      Chapter One: Declaration of Bankruptcy and its Effects (606-675)

●      Chapter Two: Administration of Bankruptcy (676-732)

●      Chapter Three: End of Bankruptcy (733-779)

●      Chapter Four: Rehabilitation of the Bankrupt (780-791)

●      Chapter Five: Preventive Composition (792-833)

●      Chapter Six: Bankruptcy Offences (834-846)

To start with, there are certain conditions identified by the law for individuals to be eligible for the declaration of bankruptcy; an individual must be considered as a “Merchant” as per the provisions of this Law, stopped and are unable to pay their debts and whose financial affairs are unstable and consisting a threat to their creditors’ rights. Bankruptcy may only be declared by a court decision. However, there are no bankruptcy courts that are exclusively dedicated to this purpose. The procedure can be started by a variety of parties, including the merchant, a creditor, or the court. The merchant willing to be declared bankrupt must submit an application to the designated court. The application must contain documents that clarifies the merchant’s financial status and his debts amounts and creditors, documents relevant to the aforementioned application are explicitly stated in the Law.

Bankruptcy effects the individuals declared bankrupt in many aspects, examples of these effects are:

●      They are banned from voting, holding office in the Shura Council, Central Municipal Councils and the Chamber of Commerce.

●      They cannot be managers, directors, or members of any company's management board.

●      They are restricted from business operations.

●      Debtor transactions undertaken after payments terminated but before bankruptcy was declared may be disallowed or clawed back.

For Further Information about Bankruptcy in Qatar, don’t hesitate to contact any of our professionals at Alhababi Law Firm!