October 2006
Construction
Law UAE
Introduction
This, the first edition of Construction Law UAE, looks at three
issues which have emerged from the white heat of the UAEs
construction market.
First, is the market too hot for traditional lump sum
turnkey procurement? With most mega-schemes
half-completed before the design and specification
are finalised, could the market benefit from a move
towards cost reimbursable guaranteed maximum price
contracting? We look at some of the pros and cons of this
approach in UAE: Time for GMP Contracting?
Second, claims. The FIDIC Fourth Edition remains the contract
form of choice in the UAE. One of its advantages, of course,
is the flexibility it allows for instructing and valuing scope
changes and the consequential re-scheduling. On the other
hand, its antiquated and obscure language can make the
meaning of key provisions hard to pin down. This is particularly
the case where notice procedures are to be complied with
as a precursor to claims for additional time and money. How
should these sometimes imprecise and conflicting provisions
be understood, particularly when read in the light of relevant
articles of the UAE Civil Code? In I thought youd never notice:
The UAE Civil Code and Claims under the Red Book we
suggest some answers.
Our third feature entitled The UAEs Accession to the New
York Convention: worth the wait? highlights the implications
of the recent accession by the UAE to the New York
Convention on the enforcement of foreign arbitral awards.
The UAE construction market, although not yet as litigious as
many, will need to consider whether these new developments
make UAE arbitration more, or less, of a mugs game.
The aim of Construction Law UAE is to stimulate debate. Please
take the time to email your thoughts and comments on what
we have said. We would like to publish the best responses. So,
when emailing, please indicate if you are unwilling for us to do
so. In future editions we hope to feature guest contributions
from our readers. Please let us know if you would like to be
a guest contributor. Please contact Di McCleland on 04 405
4150 or, alternatively, email her at
di.mccleland@dentonwildesapte.com.
Denton Wilde Saptes UAE construction group includes lawyers
with many years experience negotiating and concluding major
works contracts and handling all kinds of dispute resolution,
claims and advisory work in the UAE, across the Middle East
and throughout the developed and developing world. We are,
in Abu Dhabi: Alistair Hirst and Steven Tee; in Dubai: David
Courtney-Hatcher, Michael Kerr, Ravinder Bhullar, Andrew
Chegwidden, Ashley Hill, Nick Kramer and Matthew Blycha.
UAE: time for GMP Contacting?
Clients who ask us to help them draft forms of guaranteed
maximum price (GMP) contracts, have a variety of reasons for
their decision to contract on this basis. Fixed price lump sum
contracting, they point out, assumes that the design will be
more or less complete at the time the contract is signed. The
Contractor will have had time to assess the buildability of
the project, to organise his supply chain and sub-contractors
and generally to have satisfied himself that the job can be
completed at a profit, for the contract price and within the
contract time.
In the UAE, of course, precisely the opposite is usually the case.
First, the price and programme are fixed against an outline
design, then a contract of some kind - often just a letter
agreement - is signed. Only after that is the design developed
to a level of detail which enables the Contractor to see exactly
what he has committed himself to. The result, not surprisingly,
is a book of variations which quickly runs out of control and a
completion date without basis in reality.
There are signs that the UAEs major developers are starting to
realise that they cant have it both ways. Fixed price and fixed
time mean fixed workscope. If, on the other hand, an instant
start on site really is essential, with construction following hard
on the heels of design development, a procurement method
which is more flexible than the rigid fixed price lump sum
approach is needed.
For these reasons, the UAEs construction industry is seeing
increasing numbers of contracts awarded on the basis of a
GMP. The advantage of GMP contracting, if properly used,
is that it facilitates an early start on site without sacrificing
reasonable price certainty. It incentivises the Contractor to
be efficient and the Developer to ensure that his design team
sticks to the design development programme.
So, how does GMP contracting work? Typically, the Contractor
bids against the Developers preliminary or outline design and
specification and the parties agree a guaranteed maximum
price. Interim payment valuations are made on an actual
cost, open-book basis. The categories of reimbursable costs
- labour, materials, plant and sub-contractors are pre-
agreed. There is a fee, either a lump sum or a percentage
of the reimbursable cost, to compensate the Contractor for
overheads, profit and preliminaries. As the design develops,
often with the benefit of the Contractors suggestions on
buildability, the GMP remains fixed, subject only to adjustment
in case of major scope or design concept changes, or the usual
Employers risk events.
The incentives usually arise by agreement of a target cost
sometimes an evolution of the GMP agreed between the
parties when the design has become sufficiently frozen. In
other words, once the design target is no longer moving, the
target cost can be fixed.
The target cost will work in conjunction with a pain/gain share
regime. So, if actual cost is lower than target cost, the cost
saving is shared on a pre-agreed percentage basis. If on the
other hand actual cost exceeds target cost, the cost overrun is
only shared between by the Developer and the Contractor to
the extent of the pre-agreed percentage, with the Contractor
retaining the risk of all cost overruns above the GMP.
The advantages are obvious. In order to earn their shares of
the cost savings or minimise their shares of the cost overruns,
both parties will need competent project management,
efficient design development and drawing issue, tight sub-
contract procurement and supply chain management and
elimination of waste.
So much for the underlying principles: what about the
practice? Some alarming consequences have resulted from
the unshakeable belief, still widespread in the UAE, that any
construction contract should be drafted using the FIDIC Red
Book (4th Edition) as its basis. A quick glance should satisfy
even FIDICs most loyal users that it cannot easily be adapted
for use as a GMP/cost reimbursable/target cost contract.
A number of suitable standard form contracts have been
published. These include the UKs JCT Prime Cost contract, the
NEC Option C, D and E and the ICHEME Green form but none
of these seems yet to have found favour in the UAE.
You should, therefore, consider using one of these forms as
the basis for your GMP/target cost contract, rather than FIDIC.
Or, if you decide to go bespoke remember you will need a
contract which covers at least the following:
a way of fixing the target cost (if not already fixed in the
contract);
the criteria for adjusting the GMP and/or the target cost
and a procedure for agreeing or fixing those adjustments;
what will constitute changes in the original scope, sufficient
to justify increases in the GMP and/or target cost?
the admissible categories of reimbursable costs;
how is the fee calculated and what does it include and
exclude?
which cost components are fixed at the date of the
contract and which are subject to escalation?
 how will the advance payment, if any, be apportioned
between cost and fee?
what compensation is payable upon termination? and so
on.
To conclude: GMP/target cost arrangements may be part of
the answer to the time/cost/scope tensions which are part
and parcel of the UAEs fast-track mentality. These contracts
can be written simply and clearly but FIDIC, particularly the
modified version of the FIDIC Red Book (4th Edition) which is
still widely used in the UAE, is not the place to start.
I Thought Youd Never Notice:
The UAE Civil Code and Claims
under the Red Book
FIDIC in the UAE
For all its innovation and spectacular achievements, the
construction industry in the UAE has been slow to move on from
its close relationship with the FIDIC Red Book (4th Edition) (the
Red Book). This was, of course, superseded long ago and it is
scarcely used anywhere else in the world, outside of this region.
The Red Book provides a number of notoriously tricky
procedures for claim notification and particularisation to be
followed by the Contractor. They are not sharply drafted and
their meaning and intent are not always clear. However, it seems
to be implied in some cases that if these procedures are

Clauses which expressly provide procedures for claim notification and
particularisation are:
6.3 Notice of delay or disruption in case of delayed information or
instructions;
12.2 Notice of adverse physical obstructions or conditions;
30.3 Notice of damage to any bridge or road due to the transport of
Materials or Plant;
38.1 Notice of when any part of the Works or foundation is ready to be
covered up (compliance required for 38.2 to apply);
40.3 Notice requesting permission to proceed with work after a suspension
lasting more than 84 days (compliance required for 51.1 to apply);
42.1 Notice containing reasonable proposals regarding access and
possession (compliance required - arguably - for 42.2 to apply);
44.2 Notice of an application for an extension of time;
52.2 Notice to claim additional payment for varied work;
53.1 Notice to claim additional payment under any clause of these
Conditions or otherwise;
65.5 Notice of increased costs arising from Special Risks; and
69.4 Notice of suspension by the Contractor due to non-payment by the
Engineer.
These clauses stipulate a range of notice procedures. There are some slight
differences between them. In any case, Clause 44.2 and/or Clause 53.1
apply to all of them. Contractor should comply with the 14 days notice period.
not strictly adhered to by the Contractor, the claim will be dead
in the water - in other words, the Engineer may be entitled to
reject the claim outright. Building and civil works contracts in
the UAE are generally governed by UAE law and hence the
UAE Civil Code (the Civil Code) will apply. This article considers
how, when express notification procedures are read in the light
of applicable provisions of the Civil Code, a more moderate
and fair outcome may emerge.
Entitlement to Claim
The Red Book provides that in certain circumstances a
Contractors entitlement to claim may be lost if he fails to give
notice of his intention to claim or fails to provide detailed
claim particulars within the timescales prescribed. There
are two provisions of the Red Book which state that a failure
to comply with the specified notice or particularisation
procedures for making a claim will justify the rejection of the
claim.
First, Clause 44.2, which is concerned with applications for
extensions of time. This clause provides that in case of non-
compliance with the time limit to provide notice and/or to
provide detailed claim particulars, the Engineer is not bound
to make any determination of a claim for an extension of
time. The Engineer, therefore, has a discretion not to make
a determination if either the time limit for notice or for
particularisation is not met.
Second, Clause 52.2, which applies to applications for payment
for variations. This clause states that the varied work will not
be valued unless notice of an intention to claim extra payment
is made within 14 days of the date of the instruction. Strictly
construed, this clause allows for a claim to be disallowed if the
14 day time limit is not complied with.

There is no prescribed form of notice. Clause 1.5 of the Red Book
states that notices must be in writing and that the word notify is to
be construed accordingly. As such, there is no reason why a monthly
report, for example, could not be construed as a notice. However, it
would be prudent for the Contractor to make two things clear. First,
that the written information is intended to be a notice under the
contract. Second, the clause under which it is given - this will include
in every case at least Clause 53.1or Clause 44.2.

The Red Book is silent as to what constitutes detailed particulars.
This will vary case-by-case. It would be good policy, wherever possible,
for the Contractor to invite the Engineer to confirm that he is satisfied
with the detail provided, or if not, to say so.

Please note that Clause 53.1 states that, notwithstanding any other
provision of the Red Book, all claims for additional payment under
the Red Book require 28 days notice from the date of the event giving
rise to the claim. This would appear to extend the shorter requirement
of 14 days under Clause 52.2. We would suggest, however, that the
The Civil Code
If the Engineer feels inclined to reject an otherwise meritorious
claim solely by reason of non-compliance with strict
technicalities of the notification procedures it is important for
him to consider the provisions of the Civil Code, which might
have a bearing on the issue.
For instance, the Civil Code makes clear that neither party
to a contract should act in bad faith. Article 246 states that
contracts must be performed in a manner consistent with
the requirements of good faith. This could apply, for example,
where a Contractor points to information given in agreed
minutes of a meeting or a periodic report as written notice
of an intention to claim, as required by the Red Book. If,
as is sometimes the case, a question arises as to whether
information in a formal minute or a written report is strictly
written notice, consideration of good and bad faith may, as a
matter of UAE law, be relevant. The Contractor may argue, in
such a case, that the Employer and the Engineer have actually
been notified of the existence of the claim, in a written form,
within the stipulated time period and, as such, the purpose of
the notification provision has been fulfilled and that it would be
an act of bad faith not to accept this.
The Civil Code also states that neither party may exercise its
rights under a contract in a manner which is oppressive or
abusive to the other. Article 106 says that the exercise of a
right shall be unlawful if, among other things, the interests
desired are disproportionate to the harm that will be suffered
by the other party. Thus, if an otherwise valid and meritorious
claim is disallowed solely by reason of purely technical breach
of a notice provision, this may well be unlawful, especially if the
likely financial harm to the Contractor is disproportionate to
the interests in upholding the Employers contractual right to
receive timely notice.
Furthermore, Articles 318 and 319 of the Civil Code provide
that unjust enrichment is unlawful. If, for example, the Engineer
rejects a claim for additional payment for varied work purely
on the grounds that the time limit for notice has not been met,
it could, as a matter of UAE law, be the case that the Employer
has been unjustly enriched by benefiting from additional work
while seeking to avoid payment by relying on a procedural
technicality. Consequently, the claim may succeed in the eyes
of UAE law even if the notice procedures were not complied
with.
Comment
This article highlights only a few examples of how the Red
Book, when read in the context of the applicable provisions
of the Civil Code, might not have the meaning, or at least the
effect, suggested by the express words used. There are, of
course, numerous other provisions of the Civil Code which are
likely to be relevant and must be considered when advising
the Contractor, Engineer or Employer. Contractual provisions
which appear to have drastic consequences as written in the
Red Book (or in any other standard form contract which may
be used in the UAE) may, in fact, have a modified or different
effect when read together with applicable provisions of the
Civil Code.
The UAEs Accession to the
New York Convention: worth
the wait?
The UAE has ratified the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, know as the New York
Convention (the Convention). The date of the UAEs accession is
likely to be soon. The UAE will then join the 137 states which have
already acceded.
Until now the UAE has had only limited arrangements for mutual
recognition and enforcement of foreign arbitral awards: various
treaties with states in the Gulf, the Middle East and North Africa
as well as France and India. Those treaties resulted in easier
enforcement in the UAE of awards made in those states (and vice
versa), but enforcement of awards from non-treaty states was
subject to scrutiny by the UAE courts under local laws. This not
only involved burdensome procedural requirements but also an
often lengthy court process. That said, even the enforcement of
purely domestic awards in the UAE is not without its difficulties.
With the UAEs accession to the Convention, enforcing foreign
awards from Convention states is likely to become easier. Subject
to any reservations the UAE makes when it accedes, the UAE
courts will then be required to recognise awards made in other
Convention states as binding and to enforce them under the
conditions outlined in the Convention. The grounds for objection
are limited: mainly, lack of arbitral jurisdiction or procedural
unfairness during the proceedings.
But what practical impact will this have for the UAE construction
industry? Probably not much. It remains the case that only a
very small number of UAE construction disputes reach a formal
dispute resolution process. In such cases the UAE construction
industry still tends to prefer a domestic arbitration process.
Dubai government bodies are in any case bound to do so by the
Law of Contracts of Government Departments in Dubai 1997.
It is a very rare contractor who, when tendering for a project in
the UAE, will even consider negotiating different terms for the
dispute resolution clause (eg. foreign venue, international rules
etc.). The UAE construction industry therefore remains far more
likely to generate domestic UAE awards than foreign ones. The
Convention is, of course, no help in relation to domestic awards: it
applies only to foreign awards.
So, does the UAEs accession to the Convention offer any real For further information, please contact:
benefits to the UAE construction industry at all? The answer,
perversely, may be yes, but only if the UAE construction David Courtney Hatcher
industry is prepared to consider opting for foreign arbitration T +971 4 3310220
venues. These would then generate foreign awards. The F +971 4 3310220
obvious benefit is that the Convention would then apply. david.courtney-hatcher@dentonwildesapte.com
Enforcing a foreign award in the UAE under the Convention
may be considerably easier and quicker than enforcing a Michael Kerr
domestic award. Moreover, a party with the benefit of a T +971 4 3310220
UAE award may find it easier to take that award to another F +971 4 3310220
Convention state than to face the hurdles and uncertainties michael.kerr@dentonwildesapte.com
associated with enforcement in the UAE.
Alastair Hirst
These are peculiar and, presumably, unintended T +971 2 6266180
consequences. F +971 2 6266175
alastair.hirst@dentonwildesapte.com
Perhaps the imbalance between these legal regimes will be
corrected in time, leading to a more uniform approach towards
ratification of domestic and foreign awards.

At the time of writing, the full text of the instrument of

accession has yet to be released. This may confirm, among
other things, whether awards made before ratification or
accession will be enforceable under the Convention and
whether the UAE has made any reservations regarding
enforcement of awards. These may include only enforcing
awards which are made in other Convention states and/or
which relate to disputes which are commercial in nature.
The ratifying decree does not contain any reference to
reservations. We hope to be able to address these questions in
our next edition.

2006 Denton Wilde Sapte, unless otherwise indicated. All information correct as at time of printing. Consistent with our policy when giving advice on a non-
specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of a specific problem we recommend that you seek
professional advice.

With effect from 1 November 2006 any references to Denton Wilde Sapte should be taken as referring to Denton Wilde Sapte LLP.
The term partner is used to refer to a member of Denton Wilde Sapte LLP or an employee or consultant with equivalent standing and qualifications.

Denton Wilde Sapte & Co

Denton Wilde Sapte & Co Legal Consultants
26th Floor Suite 1204
API World Tower Al Ghaith Tower
Sheikh Zayed Road Hamdan Street info@dentonwildesapte.com
PO Box 1756Dubai PO Box 47656Abu Dhabi www.dentonwildesapte.com
United Arab Emirates United Arab Emirates
PU18490 09/06

T +971 4 331 0220 T +971 2 6266180

F +971 4 331 0201 F +971 2 6266175
dubai@dentonwildesapte.com abudhabi@dentonwildesapte.com
www.dentonwildesapte.com www.dentonwildesapte.com
Law of Tort in the UAE
COMPANY PROFILE

Al Tamimi & Company is the largest independent law firm in the United Arab Emirates, with offices in Dubai, Abu Dhabi,
Sharjah, Dubai Internet City and Doha, Qatar.

The Firm acts in the all areas of business law, and provides specialized legal services in the fields of shipping, construction,
property, commercial and Islamic banking, project finance, intellectual property, information technology, media law,
arbitration and local and foreign litigation matters.

The Al Tamimi & Company team is comprised of qualified and experienced lawyers from the UK, North America, Europe,
South Africa, the UAE, Iraq and other Arab countries.

Our clients depend on our proficiency in local and regional laws. Within the UAE we enjoy long established contacts within
the public sector, and regularly confer with government departments and ministries, with respect to new legislation and
regulations. Such local contacts and regional knowledge greatly assist our private sector clients and the international
corporations that represent the majority of our client base.
TABLE OF CONTENTS

1 INTRODUCTION TO THE LAW OF TORT IN THE UAE LAW ........................................... 1

2 LIABILITY FOR TORTIOUS ACTS ....................................................................................... 2

3 DAMAGES IN TORT CASES ............................................................................................... 4

4 CRIMINAL ACTS.................................................................................................................. 5

5 TIME LIMITATIONS ............................................................................................................. 6

6 DEATH ................................................................................................................................ 7

7 MINORS .............................................................................................................................. 8

8 THIRD PARTIES ................................................................................................................... 9

9 MISCELLANEOUS CASES .................................................................................................. 10

10 DAMAGES IN TORT & CONTRACT.................................................................................. 11

(1) INTRODUCTION TO THE LAW OF TORT IN THE UAE LAW

What does Tort mean in UAE Law?

A tort in UAE law is a civil wrong resulting from an act or omission that has caused injury or loss to a person or to property,
regardless of whether or not the act or omission constitutes a crime or is caused by a breach of contract. Tort is recognised
in UAE law under Articles 124 and 282-298 of Federal Law No.(5) of 1985 (as amended), the Civil Code. Articles 124 and
282 read as follows:

Article 124

"Personal obligations or rights shall arise out of dispositions, legal events and the law, and the sources of obligation shall be
as follows;

1. contracts;
2. unilateral acts;
3. acts causing harm (tort);
4. acts conferring a benefit; and
5. the law"

Article 282
"Any harm done to another shall render the perpetrator, even if he is a minor, liable to make good the harm."

These articles form the basis of the Law of Tort in the UAE.

1
(2) LIABILITY FOR TORTIOUS ACTS

Who will be responsible for a tortious act?

The person who commits a tortious act (i.e. the tortfeasor) will be the person responsible for compensating the injured party
by paying damages for the loss caused, whether for personal injury or damage to property.

When will a person be liable in tort?

A person will be liable in tort if he has committed an act or omission which has directly resulted in loss or damage to another
person.

Is it necessary for the resulting loss to have been intended, for a person to be liable for a claim in tort?
It is not necessary to prove that the person responsible intended to cause loss in order to establish liability in tort. It is
sufficient for the party claiming compensation to show that the person who committed the act or omission violated a legal
obligation to take reasonable care, whether intentionally or not.

Would a person be liable even if the loss was caused by force majeure?

Article 287 of the UAE Civil Code states, if a person proves that the loss arose out of an extraneous cause in which he played
no part such as natural disaster, unavoidable accident, force majeure, act of a third party, or act of the person suffering loss,
he shall not be bound to make it good in the absence of a legal provision or agreement to the contrary.

If a person is able to show that the loss was caused by circumstances outside that persons control (such as those listed in the
Article) that person would not be held liable, unless of course there existed a prior agreement between the parties to the
contrary.

Would a person be liable to pay damages, if the loss resulted from an act of self defence?

A person who acts in order to defend himself, his family, his property or other individuals and their property, shall not be
liable to pay damages, provided that the act committed and the loss caused was the result of a necessary response to the
situation and was not excessive under the circumstances (Article 288, UAE Civil Code).

Would a person be liable for damages even if he was ordered to carry out the act or omission?

A person who carries out a tortious act will be held personally liable even if he was told to do so by another person. For
'force' to be a mitigating factor, it must be of a type that compels a person against their will to commit the act or omission.

However, an officer working in a government department or in public office would not be held liable for carrying out an act
or omission that caused loss to another person if, by so doing, he was complying with an order given to him by his superior
and was therefore obliged to comply with such an order by virtue of his employment at the time. In this case the act or
omission is legal and permissible provided that he has taken due care in the matter. However, the government department
concerned may itself be liable if a tort has been committed.

Would a person be liable to pay damages even if another person had contributed to the loss?

Article 240 of the UAE Civil Code states that, it shall be permissible for the judge to reduce the level by which an act has to
be made good, or to order that it need not be made good, if the person suffering harm participated by his own act in bringing
about or aggravating the damage.
2
In such cases each person would be liable to compensate the other to the extent of the loss he had caused. Further, if a person
caused or contributed to the loss by his own act of omission, he may not be awarded damages or the damages may be
reduced proportionately.

In the case of loss caused by more than one person, who would be liable to compensate for the loss?
In the event of loss caused by more than one person, each person shall be liable to the extent of the loss caused by their act.
However, the court may order all persons found liable to pay damages jointly and severally.

3
(3) DAMAGES IN TORT CASES

How are damages normally assessed?

Damages are generally assessed according to the extent of the loss suffered by the injured party, including, for example,
material damages and future earnings always provided that the loss was the direct result of the tortious act.

How does UAE Law treat consequential loss?

Article 283 (1) of the UAE Civil Code states harm may be direct or consequential.

Article 283 (2) states that if the harm is direct, it must unconditionally be made good, and if it is consequential there must
be a wrongful or deliberate element and the act must have led to the damage.

Article 283 (2) distinguishes between damages payable for direct loss and damages payable for consequential loss. All
loss of profit and consequential loss requires a malicious element to be present, and this has been interpreted by the Dubai
Court of Cassation as requiring a stronger element than negligence. The claimant is required to prove a malicious element
on the part of the defendant at the time the tort was committed, which may be a difficult burden of proof to discharge.

Would a person be entitled to moral as well as material damages?

It is possible for a person to make a claim for moral damages. These may include violation of a persons freedom, dignity,
reputation, social or financial status.

How is the amount of damages assessed?

Damages are normally assessed by the UAE courts in terms of financial compensation. And a judge at the execution court
stage may order the liable party to provide a guarantee in order to secure payment. However, a judge may, in some
circumstances, order the responsible party to rectify the situation or to carry out certain acts by way of compensation.

Would it be possible for parties to agree to exempt each other from compensation for wrongful acts or to limit the amount
of compensation payable?

It is prohibited under UAE law to enter into agreements which exempt the payment of compensation resulting from a wrongful
act and any agreement to this effect would be declared by the Courts null and void. However, it is permissible for parties to
limit compensation to a certain amount or to a specified remedy, provided that such agreement does not violate an existing
law, regulation or public policy.

There have been Court of Cassation judgments which have indicated that a party cannot claim in both contract and tort if the
party has a contractual relationship with the tortfeasor. There have also been contradictory judgments indicating the opposite.
The current theory is that a claim can be brought in both or either.

Would a person be liable to pay for the whole value of an affected item even if the loss was minor?

If the loss is minor and the item or the affected part of the item is replaceable, the person liable will only have to pay the cost
of restoring the item to its previous condition or for the replacement value of the item. However, if the loss or damage cannot
be rectified, the person liable must pay for the full value of the goods or materials. In cases where a person has paid damages
or replaced the affected items, he is entitled to take the affected goods as consideration for the amount paid.

4
(4) CRIMINAL ACTS

Is it necessary in a claim under tort that the party responsible be found guilty in criminal proceedings?

Criminal and civil jurisdiction are entirely separate in UAE law.

Not every wrongful act constitutes a crime under the criminal law in force in the UAE. Therefore, a person may be found
liable in tort, without being convicted in the criminal (or traffic) courts. It follows that even if a person is found innocent in a
criminal action, he may still be liable for any loss caused by his act or omission under tort in the civil courts. In terms of
evidence however, it may be difficult to prove fault or mistake if the Prosecutor has not been able to establish guilt in the
criminal proceedings.

What is the significance of a guilty verdict in a criminal court to a subsequent claim for damages in tort?

If a wrongful act committed by an individual constitutes a crime under the UAE Federal law No. 3 of 1987 (the Penal Code)
or UAE Federal Law No.21 of 1995 (the Traffic Act), any guilty judgment delivered by a criminal court will be useful in a
subsequent civil claim in tort. Because the guilty judgement will be considered conclusive evidence to show that the person
has committed the act, enabling the other party to use this as evidence to claim damages in the claim in tort.

When would a person be prosecuted in a criminal court for a wrongful act?

If the wrongful act amounts to a crime as specified in the Penal Code, the Traffic Act or any other legislation, a person may
be prosecuted for that wrongful act and may be either fined or sentenced to imprisonment. This is, of course, without
prejudice to the rights of the person who has suffered loss as a result of the act to claim damages through the criminal
proceedings or by filing a separate civil action in tort.

5
 (5) TIME LIMITATIONS

When would a claim in tort be time barred?

Any claim in tort will be time barred three years from the date that the person who suffered the loss became aware of the act
or omission of the identity of and the party who was responsible for it. However, if the act constitutes a crime and the criminal
case is still pending before the court even after the lapse of three years, the time will be extended until the date on which the
criminal case is determined.

In the case of other specific laws, the time bar period can be more or less than three years depending upon the act or omission
involved. In Federal Law No.26 of 1981 (the Maritime Code for example, claims for compensation arising out of a marine
collision are time-barred after two years from the date of the incident.

6
(6) DEATH

What would be the compensation payable in tort for causing death to another person?

A person who causes death to another person, whether intentionally or accidentally and without prejudice to any other
criminal proceedings that may be brought against him, will be liable to pay Dhs.200,000 in diyah (blood money) to the
heirs of the deceased. Diyah will only be payable if the person who caused the death is found guilty under criminal
proceedings or liable in tort for committing a wrongful act or omission.

Is diyah compensation or a punishment under UAE Law?

Diyah is compensation that is payable by an individual who has committed an act or omission, which led to a persons death.
However, it is also applied as a form of punishment and as a means of protecting the rights of the heirs of the deceased.
Therefore, it is not required that the heirs of the deceased bring an action in tort for damages in order to be awarded diyah.
The judge presiding over the criminal proceedings may award the diyah when pronouncing a guilty sentence on a defendant
(or defendants).

Can the heirs of the deceased claim diyah in addition to other compensation or is their claim limited to diyah only?

It is unclear in UAE law if the heirs of a deceased person may claim additional compensation if they have been awarded
diyah. Article 299 of the Civil Code states clearly that if diyah is payable, compensation for harm will not be payable, unless
there is an agreement to the contrary. The Dubai Court of Cassation has handed down various judgments on this point, the
last of which however indicates that a party can be found liable in the civil courts for tortious damages despite having already
paid diyah.

Would the diyah awarded as compensation for a deceased male be equivalent to that awarded for the death of the deceased
female?

The diyah payable for a deceased female in all the Emirates and in the UAE Federal Courts is the same as that payable for a
male.

Can a claim for diyah be time-barred?

The Dubai Court of Cassation has held that diyah must be paid by the person who is charged with causing the death and the
obligation to pay it cannot cease unless it is either paid or the allegedly responsible party is acquitted. There is therefore no
time-bar for a diyah claim.

7
 (7) MINORS

Would a minor be liable to pay for loss caused to another party?

Persons under the age of 16 are regarded as minors under UAE Law. Minors, however, are liable to pay for loss caused to
another person in tort. Compensation will be paid from their own money or from the money of their guardian. Article 313 of
the Civil Code may render a guardian liable for the acts committed by the tortfeasor if he is a minor or requires supervision.

8
(8) THIRD PARTIES

Would a person who has goods under his custody be liable to compensate for loss?

A person who has goods or materials under his custody (i.e. a baillee) has a duty to take care of those goods and to return
the goods to their owner in good condition, and therefore would be liable to pay the owner of the goods for any loss or
damage.

Would a person be liable to pay damages on behalf of another person who had committed a tortious act?

Normally, a person would not be liable to pay damages or compensation for the act or omission of another person. However,
under UAE law, the following persons would be liable to pay damages for the act or omission of another person:

(a) A person who has under law, or by an agreement, a duty to supervise another person because he is minor and/or suffers
from a mental or physical illness or condition. Unless he proves that he has carried out his duties with proper care and
diligence and that the damages were inevitable notwithstanding the required care; and
(b) A person who has an actual duty to supervise and guide a person who has committed the tortious act or when the act or
omission was committed by an employee in the course of his employment.
(c) However, in both the above instances, the person who paid the damages may have a claim against the person who has
actually committed the tortious act.

9
(9) MISCELLANEOUS CASES

Would a person be liable for loss caused by animals in his custody?

A person who has an animal in his custody, whether he is the owner or not, has a duty to control the animal and shall be
liable for any loss caused by the animal to another party.

Would a person be liable for loss suffered from the collapse of a building?

The owner of a building, or the manager, shall be liable for any loss caused to another person due to the collapse of the
building, unless he could prove that he was not at fault and had taken all due care as required of him by law.
Would a person be liable for loss caused by material or machinery?

If a person has, under his custody, objects or machinery that require special care, he will be liable for any loss such objects
or machinery may cause to another person.

Would a person who, in the exercise of his legal rights, causes loss to another, be liable to compensate for such loss?

The exercise of legal rights is limited by the understanding that the exercise of such rights should not cause loss to others.
Therefore, if any person in the exercise of his legal rights causes loss to others he will be liable to compensate them, if the
act was intentional or excessive in the circumstances, or committed in bad faith.

When is an act or omission considered illegal or harmful?

An act will be considered illegal or harmful if it is committed by illegal means or in violation of the following:

1. If a person has caused loss intentionally.

2. If what was intended to be gained from the act is contrary to the principles of Sharia or public policy.
3. If the right which a person is seeking is limited in relation to the excess of loss which has been caused.
4. If a person has acted contrary to usage or custom.

Unless one of the conditions above is met, a person will not be responsible for loss caused to another person.

10
(10) DAMAGES IN TORT & CONTRACT

What is the difference between a claim for damages in contract and a claim for damages in tort?

A claim for damages in tort is founded upon a breach of a legal obligation by a party that causes loss to another. A claim for
damages in contract is founded upon a breach of a contractual obligation by one party under the terms of that contract.

Can someone who is a party to a contract claim damages from the other party in tort as opposed to claiming damages for
a breach of contract?

It is possible under UAE law for a party to a contract to claim damages under the contract or in tort. Therefore, if a claim in
tort would be more beneficial to the claimant, he may choose to pursue a claim in tort. (of course, not all breaches of contract
will amount to a tortious act.). However, judgements on the point are contradictory as one judgement has been handed down
by the Dubai Court of Cassation ruling that a party cannot claim in the alternative in both contract and tort. Therefore, the
position is still somewhat unclear.

Is there a limit as to how much a person can claim for damages in tort?

There is no limit to the amount of damages that a person can claim in tort. Damages are usually assessed on the basis of actual
loss or injury suffered, and there is no concept of punitive tortious compensation in the UAE.

Can you insure against liability arising from tort?

Liability arising from tort can be insured against in many different forms. For example, insuring motor vehicles vis--vis
damage to third parties or any other form of insurance that covers the negligence, fault or wrongful act of a person. In terms
of UAE civil proceedings, an insurer will take the place of the insured via subrogation, and claim directly against any third
parties who may have caused the loss, showing the letter of subrogation as evidence of the right to sue.

Is it possible to exempt one party to a contract from liability?

Liability is not a matter of public policy, especially in the context of a contractual relationship. Article 390 (1) of the Civil
Code states that contracting parties may fix the amount of compensation in advance by making a provision therefore in the
contract or in a subsequent agreement, subject to the provisions of the law. Hence, it is certainly possible in a contract for
the parties to limit their liability to each other.

This exemption will always be subject to judicial review should a dispute arise at a future date. Normally, the only exception
to this arises if the loss was caused by cheating or gross negligence. In these circumstances the Court will most definitely
review any contractual exemption from liability.

However, it is not possible to exempt liability from tort or limit liability in advance from tortious acts, as any agreement that
attempts to provide for this will be null and void. This may be one reason why a claimant in the UAE court may opt to claim
damages under tort rather than for breach of contract.

Who should be claiming damages for loss in the case of tortious acts of omissions?

The party who has suffered loss will be the only person entitled to claim compensation. Such right however can be subrogated
to an insurance company, which under UAE law is then allowed to bring a claim in its own name. In the case of a death,
only the legal and rightful heirs of the deceased will be entitled to claim compensation. In such a case, evidence of the identity
of the legal heirs must be provided to the Court.
11
Would an employer be liable to pay damages for loss in tort?

An employer will be liable to pay an employee compensation under the UAE Federal Law No. 8 of 1980 (as amended) (the
Labour Law) if the employee dies or is injured or suffers loss during the course of his employment because of a labour accident
or occupational disease (Articles 149, 150 & 151 of the Labour Law). However, under the Labour Law, an employers
maximum liability has been set at Dhs.35,000 for death or injury to an employee. This is irrespective of actual fault or mistake
and without prejudice to the rights of an employees heirs to claim further damages against any person who may be liable in
tort, including the employer.

12
PUBLICATIONS PRODUCED BY AL TAMIMI & COMPANY

The informative brochures listed below are available free of charge from the lobby of any of our offices in the UAE. We
would also be happy to send them to you by post if you contact our Dubai office reception. Alternatively, the text of the
brochures may be accessed on our website at www.tamimi.com

Arbitration: Theory and Practice in the United Arab Emirates

Laws Regulating Insurance in the United Arab Emirates
Summary of International Agreements signed between the UAE and other countries
UAE Immigration Laws and proceedures in Dubai
E-Commerce and the UAE Law
UAE Labour Law
Companies under the UAE Commercial Companies Law
Schedule of Trademark Charges
Registration of Industrial Patents, Drawings and Designs in the United Arab Emirates
The Copyright Law in the United Arab Emirates
UAE Construction Law and Dispute Resolution
Media Query- Setting up in Dubai Media City
IT Query - E-Commerce and the UAE Law
Framework for Litigation in the United Arab Emirates
Islamic Finance- A UAE Legal Perspective
Banking and Security law in the UAE
Establishing Offshore Companies in the Jebel Ali Free Zone
IT Query- Setting uP in Dubai Internet City
Taxation Law in the UAE
The GCC Enocomic Agreement and Customs Law
Standardisation and Classification in the UAE
Law of Tort
Commercial Companies Law in the UAE
Joint Ventures in the UAE

Al Tamimi & Company also has a free monthly newsletter called Law Update which provides readers with the latest news
on legal and commercial developments in the region. To subscribe please send an email to: marketing@tamimi.com or
call +971 4 3317090 or Fax: +971 4 3313177.

visit us at
www.tamimi.com
or
www.emirates-banking.com
MAKE CONTACT WITH AL TAMIMI & COMPANY

Dubai Office
Dubai World Trade Centre 29th Floor P.O.Box 9275
Dubai UAE
Tel: +971 4 331 7090 Fax: +971 4 331 3177

Abu Dhabi Office

Arab Tower 5th Floor Suite 504 P.O.Box 44046
Abu Dhabi UAE
Tel: +971 2 674 4535 Fax: +971 2 676 8762

Sharjah Office
Al Reem Plaza Bldg 3rd Floor Suite 306 P.O.Box 5099 Sharjah UAE
Tel: +971 6 572 7255 Fax: +971 6 572 7258

Dubai Internet City Office

Bldg. 5 G 08 P.O.Box 500188 Dubai UAE
Tel: +971 4 391 2444 Fax: +971 4 391 6864

Qatar Associate Office

Adv. Mohammed Al-Marri in association with
Al Tamimi & Company
Ras Abou Aboud, 3rd floor
Next to Abou Baker Al Siddik Mosque
P.O. Box 23443, Doha, Qatar
Tel: +974 444 1232 Fax: +974 436 0921
 Newsletters

Tips for Making "Sealed Offers" in International Arbitration to Cap Liability for
Practices Costs Materials of Interest
International Arbitration Winter 2008 International Disputes
Construction and International Disputes Quarterly Quarterly, Winter 2008 (PDF)
Engineering
Poupak Anjomshoaa
Energy, Infrastructure and
Project Finance
Click here for complete newsletter

The costs of international arbitration can be considerable.1 The "sealed offer" provides
a potential mechanism for capping those costs. This article briefly outlines some tips to
consider in making a "sealed offer".

The Award of Costs in International Arbitration

An award of costs in international arbitration will be in the discretion of the arbitral

tribunal, regulated only by the specific language of the arbitration clause and any
applicable institutional arbitration rules. However, the most commonly used
institutional arbitration rules impose a positive obligation on the tribunal to make an
award on costs.2 Further, there is a general expectation that the legal and other costs3
of the successful party will form part of the award on costs, with the unsuccessful party
being ordered to compensate the successful party for its reasonable legal and other
costs.4

Three approaches to awarding costs have been observed in ICC arbitration: first, to
order the losing party to bear all of the costs; second, to allocate costs in proportion to
the outcome of the case, taking into account the relative success of each claim; and
third, to require that the costs be shared equally by the parties or that each party
bears its own costs.5 Nevertheless, several international arbitration practitioners have
observed an emerging trend in favor of the first approach.6

In light of this, parties to international arbitration who are at risk of receiving an

unfavorable award must look for a means by which they can cap their potential costs
liability. One potential solution is the "sealed offer."

The "Sealed Offer"

A "sealed offer" (often referred to as a "Calderbank letter" or "Calderbank offer")7 is a

written offer to settle a dispute which has been referred to arbitration, made "without
prejudice save as to costs". What distinguishes the sealed offer from an ordinary offer
to settle a dispute, is the cost penalty (in respect of which see below) which the arbitral
tribunal is expected to attach to it, against the offeree who does not accept the offer
and fails subsequently to achieve a more favourable award by continuing the
proceedings (i.e., "to beat the offer").

The offer is "sealed" and "without prejudice" because it is not to be brought to the
attention of the arbitral tribunal before the determination of the substantive dispute, in
case it influences the decision of the tribunal with regard to the merits of the
substantive case. However, in order that the offer can be taken into account in
assessing liability for costs, it must be brought to the attention of the arbitral tribunal
before the tribunal makes a determination on costs,8 hence the words "save as to
costs."

The Use of a Sealed Offer in International Arbitration

The sealed offer derives from English law and the practice of the English courts and
arbitral tribunals in allocating costs whereby, as a general rule, the party considered to
be the overall loser is ordered to pay the costs of the proceedings and the reasonable
legal and other costs of the overall winner, as well as any sum awarded on the merits.
This has been described as the "loser pays all" or "costs follow the event" principle, and
is generally followed even where the loser has defeated the winner on a number of
points and the recovery of the latter is significantly less than the amount originally
claimed, so long as the recovery is for more than a nominal amount.

The sealed offer alleviates the general rule on costs in England by displacing the "loser
pays all" principle when the winner has failed to beat the offer (in other words, where it
would have recovered the same or more by accepting the offer). In such an
eventuality, the winner will generally be held liable for the loser's costs incurred after
the time when the offer could have been accepted. Accordingly, the offeror can seek to
place a ceiling on its potential costs liability in respect of the period following the offer,
by offering to settle the offerees claims (or certain of them) for such amounts as it
sensibly believes the tribunal would award in respect of those claims, if the proceedings
were not settled.

Common law jurisdictions which follow the English approach towards allocating costs,
most notably Hong Kong, Australia and Canada, also give cognizance to the use of
sealed offers to counterbalance the potentially unfair effect of their approach towards
awarding costs.9 It is submitted that such a mechanism is crucial in any forum where
costs are awarded in accordance with the English principle that "costs follow the
event"; international arbitration, where this principle is increasingly followed, is one
such forum. Anyone conducting international arbitration which has some connection
with England, Hong Kong, Australia or Canada, should certainly use the sealed offer
procedure where appropriate to contend with the potential application of the general
rule on costs normally followed in those jurisdictions.

Tips for Making the Sealed Offer

Tip 1: Make the sealed offer as early in the proceedings as possible

The winner will generally be entitled to its costs up to the date when the offer can be
accepted; any costs protection which the loser derives from the offer will apply only to
those costs that are incurred after that date. Accordingly, the sealed offer should be
made as early in the proceedings as possible to derive maximum protection on costs.

Tip 2: Set out the sealed offer in writing

The sealed offer should be set out in writing in a letter which should be clearly marked
"Confidential and Without Prejudice Save as to Costs". The effect of these words
(which should be explained in the letter) is that the letter should not be revealed to the
tribunal, save with respect to the question of the costs of arbitration after the merits of
the substantive claims have been decided.

Tip 3: State the intended cost consequences of the offer

Any ambiguity in the offer may prevent the tribunal from determining the terms of the
offer and thus, whether or not the loser has "beaten the offer"; this could render the
sealed offer ineffective. The sealed offer letter should therefore contain an express
statement as to the intended costs consequences of the offer, so that there can be no
argument subsequently as to whether the sum offered was inclusive or exclusive of
costs.

Tip 4: State whether interest and counterclaims are taken into account

For the same reason, to avoid any ambiguity in the terms of the offer which would risk
the tribunal disregarding the offer, the sealed offer should state whether or not it takes
interest and any counterclaims into account.

Tip 5: State the period during which the offer remains open for acceptance

The offeree must be given a reasonable period to consider the offer before it is hit by
the costs penalty generally attached to a sealed offer. On the other hand, in order to
place pressure on the offeree to accept the offer and cease incurring further costs, the
offer should not be left open for acceptance indefinitely. Accordingly, the sealed offer
should state a reasonable period during which it remains open for acceptance. This will
also permit the tribunal to determine the date from which to impose the said costs
penalty.

Additional Tips

In addition, the sealed offer should include the date of the offer, the method of
acceptance, and the deemed date of acceptance, to avoid subsequent argument as to
whether it was accepted within the permitted period for acceptance.
Conclusion

In international arbitration, the award of costs is left largely to the discretion of the
tribunal and it is difficult to state with confidence exactly how the tribunal will allocate
costs between the parties. However, the costs of international arbitration can be
significant, with losing parties often having to bear not only their own costs, but also a
considerable proportion of the other side's costs. In this context, the sealed offer can
provide powerful ammunition for parties to international arbitration who are forced to
defend inflated or exaggerated claims.

The cost consequences of sealed offers in England are largely a matter of logic and
common sense; they go to the reasonableness of the conduct of the offeree in declining
to accept the offer. The reasonableness of the conduct of the parties is also an
important consideration for an international arbitral tribunal when exercising its
discretion on costs, therefore it is to be hoped that a tribunal in an international
arbitration will similarly give effect to a sealed offer made.

Parties who are at the contract negotiation stage may wish to consider drafting their
arbitration clauses in such a way as to anticipate the use of the sealed offer
mechanism. For those who are already at the dispute stage, there is no harm in
making any "without prejudice" offer of compromise in the form of a sealed offer, so
that it can be brought to the attention of the tribunal at the appropriate time and used
in argument as to who should be responsible for the costs of the arbitration, where it
was reasonable for the offeree to accept the offer.

1
The costs involved in an international arbitration will generally consist of the fees and
expenses of the arbitral tribunal, the administrative charge of any arbitral institution
involved, the fees and expenses of the lawyers, any experts and any other
professionals whose services may be required (e.g., transcribers and interpreters), the
cost of the hearing room and facilities, witness expenses and any internal costs.
Internal costs are not commonly awarded, save perhaps in respect of in-house counsel.

2
See Article 31 of the International Chamber of Commerce (ICC) Rules of Arbitration
(1998), Articles 38 and 40 of the UNCITRAL Arbitration Rules (1976), Article 28 of the
London Court of International Arbitration (LCIA) Arbitration Rules (1998), Articles 39 to
41 of the Rules of the Arbitration Institute of the Stockholm Chambers of Commerce
(SCC) (1999), Article 31 of the American Arbitration Association (AAA) International
Arbitration Rules (2006) and Rule 28 of the International Centre for the Settlement of
Investment Disputes (ICSID) Arbitration Rules as well as Article 61(2) of the ICSID
Convention.

3
These will include experts' and lawyers' fees and expenses.

4
See Articles 38 and 40 of the UNCITRAL Arbitration Rules, Article 41 of the Rules of
the Arbitration Institute of the SCC, and Article 28 of the LCIA Arbitration Rules which
goes so far as to suggest that there is a "general principle that costs should reflect the
parties' relative success and failure in the award or arbitration, except where it appears
to the arbitral tribunal that in the particular circumstances this general approach is
inappropriate" [emphasis added].

5
Derains & Schwartz, A Guide to the ICC Rules of Arbitration, 2nd edition (2005), at p.
371 et seq.

6
See Micha Bhler, "Awarding Costs in International Commercial Arbitration: An
Overview" ASA Bulletin, Vol. 22 No. 2 (2004), pp. 249-279; Julian Lew, Loukas Mistelis
and Stefan Krll, Comparative International Commercial Arbitration (2003), at pp. 654
655; Fouchard, Gaillard, Goldman, International Commercial Arbitration (1999), at p.
686.

7
The name derives from the English case of Calderbank v. Calderbank [1975] 3 All ER
333; [1976] Fam 93.

8
This will normally be achieved by obtaining a "bifurcated" award, so that the sealed
offer can be revealed to the tribunal during the course of the submissions on costs,
following receipt of the interim award which will have dealt with liability and damages.
The offer can thus be taken into account in the award on costs which will form part of
the final award.

If the award is not bifurcated, the parties will have to inform the tribunal at the end of
the hearing that there has been an offer of compromise from one party to the other
which they would like the tribunal to take into account in exercising its discretion on
costs; the tribunal should be provided with a sealed envelope containing a copy of that
offer on the understanding that the envelope will not be opened before the tribunal has
reached a final decision on the merits of the parties' substantive claims.

9
With respect to Hong Kong, see Order 22, Order 73 (Rule 11 et seq.) and Order 62
(Rules 2 and 5) of the Rules of the High Court which apply in Hong Kong. With respect
to Australia, see e.g., Part 42 (Divisions 1 and 3) and Part 20 (Division 4) of the New
South Wales Uniform Civil Procedure Rules 2005. With respect to Canada, see e.g.,
Rule 49 of the Rules of Civil Procedure of Ontario and Prince Edward Island and Rule
41A and 63 of the Civil Procedure Rules of Nova Scotia.

This newsletter may include links to websites other than the White & Case website.
White & Case LLP has no responsibility for any websites other than its own, and does
not endorse the information, content, presentation or accuracy, or make any warranty,
express or implied, regarding any other website.

This newsletter is prepared for the general information of our clients and other
interested persons. It should not be acted upon in any specific situation without
appropriate legal advice.

This newsletter is protected by copyright. Material appearing herein may be reproduced

or translated with appropriate credit.

2008 White & Case LLP

Statutory and other Legal Issues
Paul D Taylor LL.B (Hons), ACIArb
Partner, HBJ Gateley Wareing
Dubai Office
Constitution
Federal Government
Exclusive jurisdiction
Federal Judicial Authority (not Dubai)
Federal law
Seven Emirates
Each may have a legislative body
Ruler has supreme legislative authority
Enactment of local law by Rulers Decree
Constitution
Dubai
No Federal Courts
Determination by local Courts
Appeal to local Courts
Still governed by Federal Law
But also local Law and regulations
Federal Law governs in event of conflict
Legal System
Civil Law system
Statutory Code
Islamic Law and Sharia
Embodied in civil and commercial laws
Governing Law (see below)
Influence of Common Law?
Construction Contracts
Terminology
Legal System
Litigation (except DIFC)
In Arabic before local judges
Court appointed experts
Submission of evidence
Witness statements
Third party experts
Documents
Oral testimony
Legal System
Arbitration
Still governed by UAE law
New York Convention - enforcement
Language and venue
Recognised rules
ICC/LCIA etc
DCCI/DIAC/DIFC Dubai
ADCCAC Abu Dhabi
Legal System
DIFC
Courts
Arbitration
Jurisdiction
Alternative Dispute Resolution
Amicable settlement
Mediation
Dispute Adjudication Boards
Conciliation
Governing Law
Effect of governing UAE Law
Precedent/previous Court decisions
Persuasive but not prescriptive
No oral argument
No cross examination
No discovery/disclosure
No injunctive relief
Memoranda/written submissions only
Legal Framework
The Courts
Criminal and Civil Courts
Court of First Instance
Court of Appeal
Supreme Court or Court of Cassation
Jurisdiction
International jurisdiction
Action against a UAE National
Foreign person or entity domiciled in UAE
Assets located in the UAE
Contract or obligation in the UAE
Defendant has UAE domicile or place of
residence
Jurisdiction
Domestic jurisdiction
Individual Emirates Court
Geographical area and defendants domicile
Place in which damage occurred
Place in which agreement executed or
concluded (N.B. DIFC)
Head or branch office location
Civil Laws
Federal Law number 5 of 1985
The Civil Transactions Code
The Civil Code (see below)
Federal Law number 11 of 1992
The Civil Procedure
How the legal process works
Civil Code
Arabic, not English
Interpretation
Article 124
Personal obligations or rights shall arise out of
dispositions, legal events and the law, and the
sources of obligations shall be as follows:
(1) contracts
(2) unilateral acts
(3) acts causing harm (torts)
(4) acts conferring a benefit; and
(5) the law.
Civil Code
Contracts
Arts 125-128 General Provisions
Arts 129-242 Elements & Validity of a
Contract
Arts 243-256 Effect of the Contract
Arts 257-266 Construction of Contracts
Arts 267-281 Dissolution of Contracts
Civil Code - examples
Article 215(1) Consent may be by any act or
word indicating the same expressly or by
implication

Article 215(2) Silence shall be taken to be

consent if by custom it indicates consent
Civil Code - examples
Article 246(1) The contract must be
performed in accordance with its contents,
and in a manner consistent with the
requirements of good faith
Civil Code - examples
Article 258(1) The criterion in (the
construction of) contracts is intentions and
meanings and not words and form

Article 258(2) The primary rule is that words

have their true meaning and a word may not
be construed figuratively unless it is
impossible to give it its direct meaning
Civil Code examples
Article 267 If the contract is valid and
binding, it shall not be permissible for either
of the contracting parties to resile from it, nor
to vary or rescind it, save by mutual consent
or an order of the court, or under a provision
of the law
Civil Code - Muqawala
Muqawala contract to make a thing or to
perform a task
Articles 872-896
Includes provisions for employer,
contractor, subcontractor, architect
Relevant to all construction contracts and
related professional services contracts
Civil Code - Muqawala
Article 880 Decennial Liability
Ten year strict liability for structural defects
and instability on contractor and consultant
Cannot contract out of it or limit its legal effect
Article 892 A contract of muqawala shall
terminate upon the completion of the work
agreed or upon the cancellation of the
contract by consent or by order of the court
Civil Code - Torts
Acts Causing Harm Articles 282-317
Article 283(1) Harm may be direct or
consequential
Article 283(2) If the harm is direct, it must
unconditionally be made good, and if it is
consequential there must be a wrongful or
deliberate element and the act must have led
to the damage
Article 284 If the harm is both direct and
consequential, the rules relating to direct harm
shall apply
Civil Code - Torts
Article 292 In all cases the compensation
shall be assessed on the basis the amount of
harm suffered by the victim, together with loss
of profit, provided that that is a natural result
of the harmful act
Civil Code - various
Other provisions and issues
Article 390(1) The contracting parties may fix
the amount of compensation in advance by
making a provision therefor in the contract or
in a subsequent agreement, subject to the
provisions of the law
Penalties or LDs?
Civil Code - various
But
Article 390(2) The judge may in all cases,
upon the application of either of the parties,
vary such agreement so as to make the
compensation equal to the loss, and any
agreement to the contrary shall be void
Effect on penalty or LDs clause?
Court decisions on Article 390
Commercial Code
Federal Law Number 18 of 1993
Includes commercial activities, traders,
contracts of supply, and other activities
considered to be similar
Not generally relied on in construction
contracts but certain provisions could be
considered binding
Be aware of it
Conclusions
UAE Law generally governs
Civil Code therefore binds
Common law terms ineffective
Contracts and appointments must be
considered both contractually and under UAE
law provisions
No case-law precedents
Expect uncertainty no cast iron cases
Finally
Prevention is always better than cure
so do take advice
Paul D Taylor LL.B (Hons), ACIArb
Partner, HBJ Gateley Wareing
dt: + 971 4 321 9999
m: + 971 50 5510 474
PTaylor@hbj-gw.com
www.hbjgateleywareing.com
Winter 2009

International Disputes Quarterly

Focus: An Arbitrators Perspective
In This Issue

An Interview with George A. Bermann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

An Interview with Alfredo Bullard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Client Alerts: Recent Developments in International Arbitration

Non-Exclusive Jurisdiction ClausesEffect in Hong Kong Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Contributing Authors:

Sophie East
No Remedy for an Investors own Mismanagement: Dave Lau
The Award in the ICSID Case Biwater Gauff v. Tanzania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Epaminontas E. Triantafilou
Christophe von Krause
Second Circuit Limits Discovery from Nonparties to Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Practice Tips: Tips for Fast-Track Arbitration: The Procedural Tools Available . . . . . . . . . . . . . . . . . . . . . . 12 Editors:
Practitioner Recognition, Practitioner Appointments and News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Sophie East
Kirsten Odynski

An Interview with George A. Bermann

George A. Bermann is the Walter Gellhorn Q: Based upon your experience as

Professor of Law and the Jean Monnet arbitrator, are there are any special tips for
Professor of European Union Law at counsel from common law backgrounds?
Columbia Law School. He has been a member Any common law tendencies that counsel
of the Columbia Law School faculty since should try to limit?
1975 and his principal courses at present A: Being of common law training, I generally
are European Union Law, Comparative Law, find common law advocacy appealing.
Transnational Litigation and WTO Dispute However, I often sit with civil-law-trained
Resolution. Professor Bermann has participated arbitrators, and in addressing them,
as arbitrator in numerous arbitrations. common law counsel would do well to
indicate as clearly as possible at the outset
Q: Are there any techniques/strategies of examination (and especially cross-
that you have seen counsel use in an examination) the path of questioning. This
arbitration where you have been arbitrator, will suggest a coherence in questioning that
which you think are particularly effective some arbitrators find lacking in common
to making counsels case? law advocacy. There is a risk with such
A: Graphics which succinctly depict a partys arbitrators that counsels direct and cross-
argument, followed by graphics that depict examination can look disjointed and aimless. White & Case Takes
the defects in the adversarys argument. Top Spot Worldwide
Q: Based upon your experience as
Q: Are there any techniques/strategies arbitrator, are there are any special tips The International Whos Who
that you have seen counsel use in an for counsel from civil law backgrounds? of Commercial Arbitration 2009
arbitration where you have been Any civil law tendencies that counsel
arbitrator, which you think are particularly should try to limit?
ineffective to making counsels case? A: Civil law counsel, especially when White & Case llp
A: The use of expert witnesses who are less appearing before common law arbitrators, 1155 Avenue of the Americas
than cogent and convincing. need to pay special attention to the crispness New York, NY 10036
of their advocacy, which is too often lacking. + 1 212 819 8200

www.whitecase.com

www.whitecase.com
 International Disputes QuarterlyFocus: An Arbitrators Perspective
(Note that my caution to common law counsel
is very much the obverse of my caution to civil
law counsel).
Q: Under what circumstances should a Tribunal
consider appointing its own expert?
A: Generally speaking, it is unnecessary to do so.
I think it should be avoided unless (a) the technical
character of the expert evidence has made the
contribution of the party-appointed experts less
than comprehensible or (b) the Tribunal finds that
the party-appointed experts were (or appear to
have been) unduly partisan.
An Interview with Alfredo Bullard
Alfredo Bullard is a partner at Bullard, Falla &
Ezcurra Abogados in Lima, Peru, a boutique law
firm that focuses on competition, regulatory issues
and arbitration. Dr. Bullard chaired the drafting
commission for Perus new General Arbitration Law,
enacted in 2008 and has participated as arbitrator,
counsel or expert in over 80 arbitrations, both
domestic and international. He also served for several
years as President of the Competition Chamber of
INDECOPI, Perus highest administrative tribunal in
issues of competition and intellectual property.
Q: You recently chaired the commission that
drafted Perus new General Arbitration Law,
applicable to both domestic and international
arbitrations. What are the advantages of this
new law? To what extent will this law help
bridge the differences between domestic and
international arbitrations in Peru?
A: It is a very modern law and has received good
commentary. It protects arbitration and makes
it more dynamic and flexible. It reinforces the
autonomy of the parties and the arbitrators to
manage the arbitration. It limits judicial interference.
It protects the arbitration agreement and has
very interesting and new rules, such as those
that regulate the participation of non-signatory
third parties. Having a similar regulation for
2 winter 2009
Since I would not presume, ex ante, that
either of these situations will arise, I would
generally not retain an expert for the Tribunal
until after the first opinions have come in,
even though this will by definition entail some
otherwise avoidable delay.
Q: What is your view of dissenting opinions
in international arbitrations? Should they be
encouraged? Discouraged?
A: They should be discouraged and I discourage them.
domestic and international arbitration will help
Peruvians become accustomed to arbitrate under
international standards. I think it contributes a
great deal towards Peru becoming a competitive
venue for international arbitration.
Q: How has Perus domestic arbitration
practice evolved since 1996, when Perus
previous arbitration law was enacted? (Please
refer to changes in demand for arbitration,
the evolution of local counsel and arbitral
institutions and the response to arbitration by
Peruvian courts.)
A: Peru is a special case. It is the country with
the most explosive growth in arbitration in Latin
America (and perhaps the world). In the last
12 years we have gone from being a place where
nothing was arbitrated to a country that arbitrates
almost everything. The State has been very friendly
to arbitration. The laws for public contracting and
acquisitions oblige the State to have an arbitration
clause in all its contracts. In any expropriation, the
expropriated subject can ask for an arbitration to
rule on the compensation to which he is entitled.
And the State has promoted investment in a context
that is very friendly to foreign investment. We live
in an intense arbitral culture, and practice is very
intense and I would say, of good quality. Already,
legal firms have departments or specialists in
arbitration and the Judicial Branch has been very
respectful of arbitrators decisions. Indeed, the
Constitutional Tribunal has developed a consistent
case law that permits arbitrators to cast off judicial
interference that does not relate to the annulment
of the award. All law schools have arbitration
courses and the congresses and seminars that
they organize are filled by an interested audience.
Agents already know arbitration is a different world
from ordinary litigation, and businessmen are happy
to have escaped complicated and difficult judicial
processes. The important thing is that we continue
to advance and that there is much enthusiasm; so
much so that we have approved a new law (despite
the fact that the old one was working well), because
we want to advance even faster. In Peru, arbitration
has arrived to stay.
Q: You have acted as counsel, arbitrator and
expert in several domestic and international
arbitrations. What are the main differences in
your approach to arbitrations in each role?
A: They are very different, but at the same time
complementary. It is like soccer; the game looks
different depending on where you are standing. The
attorney is the player. The responsibility to try and
win rests with him. The expert is like a technical
advisor who, while maintaining his independence,
has to give an opinion on how he sees the game
and these opinions help the player understand the
match better. The arbitrator is the referee and has
to make the decisions that define who wins. Having
been a referee helps you play better because you
understand how the decision-maker thinks. But,
having been an attorney helps the arbitrator to
understand the problems facing the parties in
proving their case. The experts role seems the
easiest because it appears to involve the least
responsibility, but in reality it is central because
you have to lend credibility to a defensive position.
And, a good expert must know that he can only be
credible by maintaining independence. I have been
lucky to have played all these roles, but the one I
most enjoy is, without a doubt, being an arbitrator.
White & Case LLP
Q: What are, in your opinion, the main
differences between domestic arbitrations and
international arbitrations, whether procedural
or substantive? Which of these differences are
a result of the civil law/common law divide
and which are a result of the national v.
international character of the arbitration?
A: I always tell my students that the difference
is like reading a book and watching the movie:
international arbitration is much more vivid. Maybe
in international arbitration the principles are
more important than the legal rules and above
all, it is much more factually oriented. Proof is
more important than legal argument. This makes
international arbitration more oral (more hearings)
and makes witnesses and experts the principal
proofthis is a clear influence of the common law.
But these differences tend to be disappearing. Both
types of arbitration become more alike with each
case and I think that in the near future both will be
cinematic.
Q: In your experience, do arbitrators from civil
law countries approach the resolution of legal
issues differently than those from common law
countries? For example, would it be true to say
that civil law arbitrators are more formalistic
and that common law arbitrators focus more
on equity?
A: As I said, common law arbitrators are more fact-
based. They are more concerned with the evidence,
the witnesses, and the hearings. It is a natural
consequence of a practice where case law is
central. In common law, the rules are created based
on concrete cases rather than abstract ideas. The
civil law arbitrator tends to concern himself more
with written documents and written legal positions.
This can give the impression that they are more
formalistic. But they are tending to become ever
more similar. When I comment on the common
laws influence on arbitration with my common
law colleagues, they answer definitively that it is
the other way around: that arbitration forces them
to write too much and use a lot of doctrine in
civil law style. It is probable that arbitration is the
genetic offspring of both systems and that those of
3
 International Disputes QuarterlyFocus
QuarterlyFocus: An
on Arbitrators
ArbitrationPerspective
in Asia and the Pacific Rim
us from each system focus mostly on what we see
as different. The father says it looks like the mother
and the mother says it looks like the father, but in
reality it looks like both.
Q: Based on these differences, what are the
three most important recommendations you
would give counsel when advising on an
international arbitration?
A: First, never promise your client something you
cannot attain. Success is not winning everything, but
doing what you promised you would do. Believing in
a case you dont have irritates arbitrators, disillusions
your client and damages your reputation. Second, be
Client Alerts: Recent Developments in
International Arbitration
Non-Exclusive Jurisdiction Clauses
Effect in Hong Kong Law
Dave Lau (Hong Kong)
Non-exclusive jurisdiction clauses are common
provisions in contracts. Typically, they allow the
parties to agree to submit any dispute arising
from the contract to a particular jurisdictions
courts, while leaving the parties free to commence
legal proceedings in any other jurisdictions
courts. In contrast, exclusive jurisdiction clauses
are more restrictivein addition to agreeing on a
particular jurisdiction, the clause will also stipulate
that any dispute can only be submitted to that
agreed jurisdiction.
The two types of jurisdiction clauses are
clearly different in theory. As to their effect in
practice, particularly in the context of how the
Hong Kong Court may give effect to them when
deciding whether to take jurisdiction over
a dispute, the differences between them are
not as straightforward, as explained in a recent
Hong Kong Court of Appeal decision.
4 winter 2009
honest with the tribunal. The majority of arbitrators
have the experience and the time to discover that
you are not being transparent. Lies have short legs in
arbitration. It is better to recognize the weaknesses
of your case and not wait for the other party to bring
them out and destroy you during a hearing. Third,
take good care of the evidence. More arbitrations
are won because you were able to convince
the tribunal of what happened than because you
convinced them of a legal position. If you manage
to have them sympathize with your case, it will be
easier for them to accept your legal theory. But, if
you convince them of your legal theory and not your
facts, you will likely lose.
In Noble Power Investments Limited & Another
v. Nissei Stomach Tokyo Co Ltd, CACV 398/2007
(decision handed down on 24 April 2008), the parties
were all companies registered in places other than
Hong Kong. None of the parties carried on business
in Hong Kong. However, in a Hong Kong law-
governed Cooperation Agreement made between
the parties in June 2006, there was a non-exclusive
jurisdiction clause providing for the parties to
submit to the non-exclusive jurisdiction of courts of
Hong Kong. The clause stated expressly that
[n]othing contained in this Clause shall limit
the right of any party to take any suit, action
or proceedings arising under this Agreement
against the other parties in any other court of
competent jurisdiction. About one month after
the Cooperation Agreement was entered into, the
Defendant sent a letter to the Second Plaintiff
effectively stating that the Defendant was not
going to perform its obligations. The Plaintiffs
regarded this as a repudiation by the Defendant
and subsequently commenced proceedings in
Hong Kong claiming damages. As the Defendant
is a Japanese company based in Japan, under
Hong Kong law the Plaintiffs had to get the Hong
Kong Courts permission to serve the writ on the
Defendant in Japan. The Plaintiffs obtained such
permission and served the writ on the Defendant.
The Defendant then issued an application in the
Hong Kong proceedings, amongst other things, to
set aside the service of the writ, saying that the
Hong Kong Court should not have granted the
permission to serve the writ, on the basis that
Japan was a more appropriate forum than Hong
Kong for the trial of the matter.
At first instance, the Court considered the
Defendants application on the usual forum non
conveniens basis and regarded the non-exclusive
jurisdiction clause simply as one of the factors to
be weighed in its decision as to the appropriateness
of Hong Kong as the forum for the dispute in
question. The Court decided that Japan was the
more appropriate forum for the dispute and granted
the Defendants application.
The Plaintiff appealed successfully to the Court
of Appeal. The Honourable Mr. Justice Ma, the
Chief Judge of the High Court, gave the leading
judgment. In summary, the Court of Appeal held
the following:
1. The basic premise is that, save in exceptional
cases, the Court will hold the parties to their
contractual bargains. In the context of a non-
exclusive jurisdiction clause, the parties have
agreed to submit to a named jurisdiction.
2. Accordingly, where proceedings are commenced
in the named jurisdiction, the party that contests
the appropriateness of such jurisdiction will
have a very heavy burden to discharge,
since that party has agreed contractually to
submit to that jurisdiction. To discharge this
burden, the contesting party will have to show
strong or overwhelming reasons or exceptional
White & Case LLP
circumstances such as the existence of factors
not contemplated by the parties at the time
the relevant agreement was made. The Court
of Appeal commented that in this sense, the
non-exclusive jurisdiction clause is in practice
the same as the exclusive jurisdiction clause.
3. However, where proceedings are commenced in
a jurisdiction other than the named jurisdiction,
although each case would depend on its facts,
generally the above contractual submission issue
will not arise, so the contesting party may well
have a less heavy burden.
4. Accordingly, in the present case, where there
was a non-exclusive jurisdiction clause (providing
for submission to the Hong Kong Court) and
proceedings were in fact commenced by the
Plaintiffs in Hong Kong, the Court of First Instance
was wrong to regard the non-exclusive jurisdiction
clause simply as one of the factors to be
weighed in its decision on the appropriateness of
Hong Kong as the forum.
5. Instead, simply by referring to the non-exclusive
Hong Kong jurisdiction clause, the Plaintiffs had
already discharged their burden of showing
that Hong Kong was an appropriate forum.
Thereafter, the burden shifted to the Defendant
to show strong or overwhelming reasons or
exceptional circumstances as to why the parties
contractual bargain should not be upheld. Since
the Defendant has failed to do this, its application
should have failed.
This case is a sound reminder to parties to think
carefully when agreeing on any kind of jurisdiction
clauses. It is over-simplistic to think that a
non-exclusive jurisdiction clause maintains fully
the parties freedom to conduct disputes in any
jurisdiction they may wish. The Hong Kong Court
has stated clearly that it will hold parties to their
contractual bargains, including in a non-exclusive
jurisdiction agreement.
5
 International Disputes QuarterlyFocus: An Arbitrators Perspective

White & Case No Remedy for an Investors Own Mismanagement:

International The Award in the ICSID Case Biwater Gauff v. Tanzania
Arbitration practice
ranked tier 1 Epaminontas E. Triantafilou (Washington, DC)

Chambers USA
Introduction
White & Case On July 24, 2008, a panel of distinguished arbitrators
International (Gary Born, Toby Landau, Bernard Hanotiau) rendered
an award in the case of Biwater Gauff (Tanzania)
Arbitration practice Ltd. v. United Republic of Tanzania.1 The ICSID
ranked tier 2 Tribunal refused to award damages to an Anglo-
German consortium that filed a claim against the
Chambers Europe. Republic of Tanzania under the UK-Tanzania Bilateral
Investment Treaty (BIT). The Tribunals ruling came
in the wake of an award in favor of Tanzania in an
UNCITRAL arbitration initiated by the parties to
resolve their purely contractual (i.e., non-treaty)
differences. The main thrust of the Biwater Gauff
decision, endorsed by the Tribunals majority, 2
is that while Tanzanias actions may have constituted
prima facie violations of certain BIT provisions, they
did not cause injury to the claimants venture.
Consequently, the claimant was not entitled
to compensation. In the course of its discussion,
the Tribunal made some important observations
with respect to the notion of legal injury and
the proper conceptualization of investment in
ICSID arbitration. It also offered a reminder that
ICSID arbitration is not meant to be an insurance
policy against an investors miscalculations and/or
fiscal mismanagement. Finally, the Tribunal offered
some remarks on the role of amici curiae in the
arbitral proceedings.
Summary of the Dispute
Biwater arose out of a dispute between a British
project company, held jointly by a British and a
German company, and the Republic of Tanzania
over a concession to operate the water and
sewerage services of Tanzanias capital, Dar es
Salaam. After concluding that Claimant failed to
meet its contractual obligations, Tanzania canceled
the contract and regained possession of assets
previously leased to Claimant. Claimant brought
an action before ICSID under the UK-Tanzania BIT,
claiming that Tanzania breached its obligation to
afford Claimant fair and equitable treatment, to
provide full protection and security, not to take
unreasonable and discriminatory measures and to
guarantee the unrestricted transfer of funds.
Facts Established By The Tribunal3
In 2003 several multilateral lending institutions,
including the World Bank, the African Development
Bank, and the European Investment Bank,
granted Tanzania US$140 million to upgrade and
expand the water and sewerage infrastructure
of its capital city, Dar es Salaam. In 2002, to
fulfill some of the conditions imposed by the
multilateral lenders, Tanzania had launched a bidding
process for a private operator of water and sewerage
services, who would also serve as a contractor for
some of the required upgrade and expansion works.
Tanzania awarded the concession, set to last for
ten years, to a joint venture of Biwater International
Limited (Biwater), a British corporation and HP
Gauff Ingenieure GmbH and C. KG-JBG (Gauff).
In January 2003, Biwater and Gauff incorporated
jointly Biwater Gauff (Tanzania) (BGT), a British

1 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (July 24, 2008) (Biwater Gauff ).
2 Arbitrator Gary Born filed a separate Opinion, concurring in part, dissenting in part and concurring in the judgment. Mr. Borns narrow dissent
focuses on the distinction between causation and valuation and whether one or the other best supported the Tribunals refusal to award damages
in this case. See Section V below.
3 An elaborate and well-presented account of the relevant facts appears in Award 95-228.

6 winter 2009
corporation that would become the Claimant in
this case. In turn, as required by the terms of the
bid, BGT partnered with a Tanzanian company,
Super Doll Trailer Manufacture Co. (T) Limited
(STM), and incorporated the operating company,
City Water Services Limited (City Water), under
the laws of Tanzania. To implement the project,
City Water entered into three key contracts (jointly,
Project Contracts) with the Dar es Salaam Water
and Sewerage Authority (DAWASA).
Under the terms of the Project Contracts, City Water
would lease DAWASAs existing pipeline network,
which City Water would use to provide water and
sewerage services to customers. Customers would
pay a tariff that would remain fixed under a contractual
indexation formula for the first five years of operation.
City Waters portion of that tariff was subject to
three levels of review: annual, interim and major. The
main reason the parties agreed to elaborate tariff-
review provisions was that neither City Water nor
DAWASA had extensive or sufficiently reliable data
on customer demand and revenue projections. In
addition to providing services previously rendered
by DAWASA, City Water would undertake, on a
priority basis, the performance of upgrades to the
water supply system and would install water meters
in all customer locations, to attain accurate data on
water consumption. City Water would also act as the
main contractor for the expansion of Dar es Salaams
water supply network and for other improvements
necessary for the implementation of the project.
Eleven months after the commencement of City
Waters operations, however, it was apparent that the
project was facing significant financial difficulties and
was in danger of shutting down. City Water concluded
that it would need to call for an interim review of the
tariff it was receiving under the Project Contracts.
Critically for Claimants claims against Tanzania,
although the water and sewer systems were in bad
condition before City Water took over, shifting part of
the blame for increased operating costs to prior acts of
DAWASA, the main source of City Waters problems
was the Claimants (BGTs) gross overestimation
4 Award 307-353.
White & Case LLP
of projected tariff revenues at the bidding stage,
combined with the failure of the BGT-appointed
management of City Water to successfully handle
the projects numerous challenges. The operating
companys failures were borne out in Claimants
own internal evaluation of the project, in reports by
independent auditors employed to evaluate whether
a tariff renegotiation was warranted (it was not) and
the decision of a mediator employed by the parties
in the course of subsequent negotiations on how to
revive the moribund project.
Despite good faith negotiations during the first
months of 2005, Claimant and the Government of
Tanzania failed to reach agreement on how to salvage
the project. Contemporaneous documentation cited
by the Tribunal provides further evidence that the
project was in dire straits, since solutions that were
considered potentially viable during the negotiations
were simultaneously characterized as radical or
last resort by the parties themselves.
While the contractual relationship was headed
inevitably towards dissolution, Tanzanian
Government officials, motivated by electoral
concerns, among others, took a series of drastic
measures that went far beyond the contractually
mandated process for termination of the Project
Contracts. In May 2005, Tanzanian Government
officials, causing public furor, repudiated unilaterally
and rather publicly the lease agreement with City
Water, while calling on the performance bond
posted by BGT, reinstated the previously waived
VAT on purchases by City Water, repossessed forcibly
the assets previously leased to City Water and
deported City Waters BGT-appointed management.
The Tribunals Holdings
The Biwater Gauff Tribunal addressed exhaustively all
arguments raised by the parties. The more significant
aspects of the Tribunals Award are listed below.
Jurisdiction:4 The Tribunal found that it was properly
vested with jurisdiction. A notable objection by
7
 International Disputes QuarterlyFocus: An Arbitrators Perspective
Tanzania to the Tribunals jurisdiction was that, since
City Water had been unprofitable from the start
and was likely to remain as such for the duration
of its concession, it could not be considered
an investment under the ICSID Convention. In
support of this proposition, Tanzania cited the
regularity of profit requirement of the so-called
Salini test, according to which the hallmarks of
an investment are i) duration; ii) regularity of profit
and return; iii) assumption of risk; iv) substantial
commitment and v) significance for the host States
development. The Tribunal, nonetheless, ruled
against a strict application of the Salini test, and
in favor of a flexible approach that would allow
consideration of all relevant circumstances in a given
case. The Tribunal opined further that the mere fact
that an investment is unprofitable does not render
it unfit for protection by the ICSID Convention and
the provisions of the applicable BIT. It was sufficient
that the Claimant had in good faith expected to
receive a positive return on its investment.
Expropriation:5 The Tribunal found that Tanzania
had committed an indirect expropriation of BGTs
investment through a series of actions that
transcended the behavior expected of a party
to the Project Contracts and entered the realm
of exercise of sovereign authority that violated
Tanzanias treaty obligations. Specifically, instead
of following the contractually prescribed course for
termination of the Project Contracts, the Tanzanian
Government openly repudiated the lease contract
with City Water causing public furor, called on
the performance bond, canceled the VAT waiver
and deported City Waters expatriate staff. In the
Tribunals view, the cumulative effect of these acts
amounted to an unlawful expropriation of BGTs
rights in the lease contract and in the project
because BGTs rights, although due to expire a
short time thereafter under the contracts Notice of
Termination, were still technically valid.
5 Award 451-520.
6 Award 584-676.
7 Award 691-710.
8 Award 724-731.
8 winter 2009
Fair and Equitable Treatment:6 The Tribunal
ruled that several of Tanzanias actions breached
its treaty obligation to accord BGTs investment
fair and equitable treatment, despite the relatively
high bar State activity needs to meet to violate
that standard. Specifically, the Tribunal cited as
violations: Tanzanias publicity campaign against
City Water in May 2005, including the public
repudiation of the lease contract; the withdrawal of
the VAT exemption; the forcible occupation of City
Waters offices; the assumption of management
control by the Government and the deportation of
City Waters BGT-affiliated senior management.
Unreasonable and Discriminatory Measures:7
To be reasonable and nondiscriminatory, a States
actions need to bear a reasonable relationship
to a rational policy, while any differential
treatment of a foreign investor must have a
rational justification. Because this treaty standard
bears a close relationship to that of unfair and
inequitable treatment, the Governments acts
that the Tribunal ruled to be unreasonable or
discriminatory overlapped with those that it
characterized as unfair or inequitable. Among
such acts were the public repudiation of the lease
contract in conjunction with derogatory public
remarks directed towards City Water and BGT; a
speech delivered by a Tanzanian Minister to City
Water staff that undermined BGTs managerial
control; the withdrawal of the VAT exemption and
the seizure of City Waters assets and subsequent
deportation of its senior management.
Full Protection and Security:8 The Tribunal held
that a state affords full protection and security
when it guarantees a stable and secure physical,
commercial and legal environment. The Tribunal
found that Tanzanias seizure of City Waters
offices and deportation of City Water staff violated
Tanzanias obligation to provide a safe environment.
Remedies:9 The majority of the Tribunal (Messrs.
Landau and Hanotiau) ruled that, although some of
Tanzanias acts met the treaty-established elements
for breach of Tanzanias treaty obligations, BGT had
failed to establish a causal link between that breach
and the diminution in value of BGTs investment.
The majority found, specifically, that Tanzanias
actions were neither the proximate cause nor the
cause in fact of City Waters economic failure. The
Tribunal proceeded to demonstrate that, at the time
Tanzania committed the acts violative of the BIT,
City Water was already worth nothing due to BGTs
mismanagement. Thus, according to the majority,
Tanzania had not injured Claimant.
Amici Curiae:10 The Tribunal noted with approval
arguments made by amici curiae, which the Tribunal
allowed to participate by applying the new ICSID
Rules.11 In fact, the Biwater Gauff Tribunal was the
first ICSID Tribunal to permit amicus participation
under the new Rules. The Tribunals extensive
discussion of the points raised by the amici, and
its reference to the usefulness of the amicus
submission, affirmed the active role amici are
expected to play in investment arbitration, and
vested third-party participation with additional
institutional legitimacy (beyond that conferred by
the Rules themselves). Notably, in this instance, the
amici did not confine themselves to broad policy
considerations, as the Tribunals initial decision to
allow their participation suggested. Rather, they
addressed several substantive issues, including,
inter alia, the possibility that BGTs bid for the
project was artificially (and unsustainably) low with
an eye to renegotiation at some future point.
The Partial Dissent
As mentioned above, one of the arbitrators, Gary Born,
disagreed with the Tribunal majoritys conclusion that
BGT had failed to establish a causal link between
Tanzanias actions and BGTs injury. According to
Mr. Borns partial dissent, since BGT had made a
9 Award 773-808.
10 Award 370-392.
11 See Biwater, Procedural Order No. 5 (Feb. 2, 2007).
White & Case LLP
broad plea for relief, it had requested legal redress
for all types of injury recognized under the BIT. Thus,
a facial violation of the BIT by Tanzania automatically
amounted to compensable injury to the Claimant and
the causal link between act and injury was actually
present. One of the ways Tanzania had injured
Claimant was by depriving it of the enjoyment of
its investment before the contractually determined
termination of the Project Contracts. Tanzanias
expropriatory act was a legally cognizable injury
under the Treaty. Yet, because the investment was
worthless, the injury resulted in zero damages.
Accordingly, Mr. Born concurred in the judgment that
Claimant should receive no compensation.
The majoritys response was that both its and
Mr. Borns approaches were tenable and led to
the same resultnamely that the Claimant was not
entitled to compensation.
Conclusion
Biwater Gauff is an important case, which first and
foremost illustrates the maxim caveat investor.
ICSID claims are not insurance policies for investment
decisions that fail to yield desirable outcomes
because of poor planning and/or mismanagement.
The Award itself serves as a model of reasoning
and exhaustive analysis. In addition to promoting a
flexible view as to the notion of investment under
the ICSID Convention, the Tribunal offered clear and
compelling insights on several legal standards, such
as fair and equitable treatment, which otherwise
remain hotly debated in international investment
law. Furthermore, the Tribunal helped solidify the
legitimacy of amicus submissions, a practice that
is nascent in ICSID arbitration. Finally, the debate
between the majority and Mr. Born on the issue
of causation highlighted several nuances of a
less discussed aspect of ICSID claims. In all, the
Biwater Award is an important addition to ICSID
jurisprudence that is certain to serve as a guide for
many tribunals in the years to come.
9
 International Disputes QuarterlyFocus: An Arbitrators Perspective
White & Case was Second Circuit Limits Discovery from
named as a leading Nonparties to Arbitration
law firm with the
Construction and
Sophie East (New York)
Engineering practice
The US Court of Appeals for the Second Circuit
highlighted as
which includes New Yorkhas ruled that the
one of the Federal Arbitration Act (FAA) does not authorize
an arbitrator to compel pre-hearing document
pre-eminent outfits
discovery from nonparties to the arbitration. The
for construction decision in Life Receivables Trust v. Syndicate 102 at
Lloyds of London,12 issued on November 25, 2008,
arbitration.
is significant in that it is a definitive ruling by
Whos Who in Legal the Second Circuit on an issue which has divided
other circuits.
Construction Lawyers
2008 The Life Receivables case arose out of what
the Court described as the somewhat macabre
market where companies take over the life
insurance policies of elderly people in return for a
cash payment. As a hedge against the possibility
that an insured person might live past his or her
life expectancy, the purchasers of these policies,
such as Life Receivables Trust, buy contingent cost
insurance policies from insurers like Syndicate 102.
If the insured person lives more than two years
beyond his or her life expectancy, Syndicate 102
would pay Life Receivables the net death benefit
and assume the policy itself. A dispute arose over
the purchase of a policy covering a Mr. Wang.
Mr. Wang outlived his life expectancy by two
years, but when Syndicate 102 was called on to
pay the net death benefit, it refused and claimed
that Life Receivables misrepresented the date on
which it acquired the Wang policy and fraudulently
calculated Mr. Wangs life expectancy. During the
ensuing American Arbitration Association (AAA)
12 Life Receivables Trust v. Syndicate 102 at Lloyds of London, No. 07-1197-cv, 2008 WL 4978550 (2nd Cir. 2008).
13 In re Arbitration Between Sec. Life Ins. Co. of Am., 228 F.3d 865, 870-71 (8th Cir. 2000).
10
arbitration, Syndicate 102 sought discovery from
both Life Receivables and a closely related entity,
Peachtree Life Settlements, which bought life
insurance policies on Life Receivables behalf. Life
Receivables argued it did not control Peachtree
and had no ability to compel the production of
documents from it. The arbitration panel issued
a subpoena requiring Peachtree to produce its
responsive documents and Peachtree moved to
quash the subpoena in federal court. The District
Court upheld the subpoena and the appeal to the
Second Circuit followed.
The case turned on the language of section 7 of the
FAA, the only FAA provision to address discovery.
This states that:
The arbitratorsmay summon in writing any
person to attend before them or any of them as
a witness and in a proper case to bring with him
or them any book, record, document, or paper
which may be deemed material as evidence in
the case.
The Eighth Circuit has previously ruled that although
the FAA does not explicitly authorize the production
of documents from entities not party to the
arbitration proceedings, an arbitration tribunal has
an implicit power to subpoena relevant documents
from such third parties.13 The Fourth Circuit has said
that arbitral tribunals have this power where a party
can prove special need or hardship arising from
winter 2009
 the lack of evidence.14 However, the Third Circuit
has held that section 7 of the FAA unambiguously
restricts an arbitrators subpoena power to situations
in which the non-party has been called to appear in
the physical presence of the arbitrator and to hand
over the documents at that time.15
Like the Third Circuit, the Second Circuit in Life
Receivables held that the language of section 7 is
straightforward and unambiguous. Documents
are only discoverable in arbitration when brought
before arbitrators by a testifying witness. The Court
therefore joined the Third Circuit in holding that
section 7 of the FAA does not authorize arbitrators
to compel pre-hearing document discovery from
entities not party to the arbitration proceedings.
This is the case even where those third parties, like
Peachtree, had signed the underlying arbitration
agreements. In making this finding, the Second
14 Comsat Corp. v. Natl Sci. Found., 190 F.3d 269, 275 (4th Cir. 1999).
15 Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407 (3rd Cir. 2004).
White & Case LLP
Circuit pointed out that this did not leave arbitrators
powerless to order the production of documents
from non-parties; in fact they have a variety of
tools to do so. Arbitrators could, consistent with
section 7, subpoena a party to appear before
the panel and then order that person to produce
documents (given the party would then be a
testifying witness). Arbitrators could also compel
a third-party witness to appear with documents
before a single arbitrator, who can then adjourn the
proceedings. Separately, where a non-party to the
arbitration is a party to the arbitration agreement,
formal joinder may be appropriate which would
enable arbitrators to exercise their contractual
jurisdiction to compel discovery from the parties
before them. However, to the extent parties in the
Second Circuit wish to rely on section 7 of the FAA,
the decision in Life Receivables has made it clear
that documents ordered to be produced must be
documents held by a testifying witness.
11
 International Disputes QuarterlyFocus: An Arbitrators Perspective
Practice Tips
Tips for Fast-Track Arbitration:
The Procedural Tools Available
Christophe von Krause (Paris)
and Sophie East (New York)
Fast-track (or accelerated) arbitration can be an
effective way to help parties reduce the time taken
to reach a solution to their dispute. This article seeks
to identify examples of procedural mechanisms
and techniques that parties might use in order to
achieve fast-track arbitration. These procedural
tools are designed to accelerate arbitration either
by reducing the time between the Request for
Arbitration and the Award, or by helping encourage
settlement in the course of the arbitration.
The procedural tools for a fast-track arbitration
come from two main sources: (i) the rules of
arbitration institutions (for example, the Rules for
Expedited Procedures of the American Arbitration
Association (AAA)); or, more importantly, (ii) the
agreement of the parties. The ability of parties to an
arbitration to define and agree on their own procedure
is one of the distinctive features of arbitration. This
gives parties room for procedural creativity, including
shortening time frames between steps in the arbitral
process, or removing certain steps entirely.16
How and when should parties agree to a fast-track
procedure and the procedural tools to achieve it?
There are two main options: (i) in the Arbitration
Agreement itselfwhich expresses an intent that
arbitration be expedited and/or (ii) at the outset of
the arbitration of a dispute, because the resolution of
the dispute is of some urgency. In such cases, the
parties may invoke certain procedural tools to tailor
the arbitration to their needs. Some practical tips and
procedural tools that the parties may keep in mind
or use for accelerating the resolution of their dispute
16 For example, Article 32.1 of the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (the ICC
Rules) provides: The parties may agree to shorten the various time limits set out in these Rules ().
17 Paul Friedland, Arbitration Clauses for International Contracts 88 (2d ed., 2007).
12
are outlined below.
Tip 1: Select the right Arbitral Tribunal
The cooperation of the parties and, in addition,
of the Arbitral Tribunal (or a single arbitrator) is
essential to a fast-track procedure. If the parties
intend to employ a fast-track procedure, or
consider that the need to fast-track proceedings
could arise, they would be well-advised to:
(i) select experienced arbitrators with available time;
(ii) select arbitrators with strong case-management
skills and (iii) select arbitrators who will render their
Award in a timely manner. Inexperienced or overly
busy arbitrators may have difficulty employing or
conforming to a fast-track procedure.
Tip 2: Select time limits
Time limits in any fast-track procedure should be
reasonable and realistic. No matter how quickly the
parties may want the dispute resolved, they should
not curtail their ability to state their case fully. The
arbitrators, in consultation with the parties, should
define milestones for the steps in the proceedings
and the Award. These milestones should be flexible
where necessary to ensure due process and thus
ensure the validity of the Award.
It is possible that time limits are identified in the
arbitration clause itself. For example, a clause might
provide that:
The Award shall be rendered within [] months
of the commencement of the arbitration, unless
winter 2009
 the arbitral tribunal determines that the interest of
justice requires that such limit be extended.17
Otherwise, time limits are generally defined at
the beginning of the arbitration when the parties
and the Arbitral Tribunal discuss and agree on the
arbitration timetable.
Tip 3: Provide procedural rules to
adjust/accelerate the conduct/steps
of the proceedings
It is possible at every step of the arbitral procedure
to make adjustments in order to accelerate the
case. These could include:
n Placing a limit on the length of submissions;
n Limiting the number of submissions; for example
providing for one round of memorials rather than
the usual two rounds, or excluding the need for
the parties to submit post-hearing memorials;
n Ruling out a document production phase;
n Providing that the matter be decided on the basis
of the written submissions without the need for
a hearing;
n Limiting the number of witnesses or experts that
the parties may put forward (or even providing that
there shall be no witnesses or experts).
Tip 4: Consider the utility of
baseball arbitration
In a final offer or baseball arbitration, the
powers of the arbitrators concerning the award
are narrowed down to a choice between two final
offers submitted by the parties, after an exchange
of written pleadings. The following is an example of
a baseball arbitration clause:
18 Id., 119.
19 www.whitecase.com/idq/winter_2008_tips
White & Case LLP
Each party shall submit to the arbitrator and
exchange with the other, in accordance with a
procedure to be established by the arbitrator,
its best offer. The arbitrator shall be limited
to awarding only one or the other of the two
positions submitted.18
The advantages of baseball arbitration are that
it can expedite the resolution of disputes and
encourage settlement. This is a procedure that
commercial parties are more likely to adopt after a
particular dispute has risen. It would be difficult to
anticipate at the contract drafting stage whether or
not this procedure would work for all disputes.
Tip 5: Consider the use of a sealed offer
A sealed offer is a written offer to settle a dispute
which has been referred to arbitration. It is an offer
which is expressly made without prejudice save
as to costs.19 The offeree who does not accept
the offer and subsequently fails to achieve a more
favorable award by continuing the proceedings, is
liable for all the costs of the arbitration as of the
date of the submission of the sealed offer. The
sealed offer can therefore provide an incentive to
a settlement and thus fast-track the dispute.
However, the sealed offer comes from dispute
practice in the United Kingdom and is not yet
standard practice in international arbitration.
Conclusion
The appropriate procedural tools for a fast-track
arbitration will depend on the specificities of each
dispute. Whilst the tools outlined in this article are
by no means exhaustive, they can help to facilitate
efficient procedures in which time and cost can be
better controlled.
13
 International Disputes QuarterlyFocus: An Arbitrators Perspective
Practitioner Recognition,
Practitioner Appointments and News
Practitioner Recognition
Thirteen White & Case partners were ranked
among The International Whos Who of
Commercial Arbitration 2009, tying the Firm
for the top spot worldwide for most lawyers
recognized by the publication, which identified
White & Case as a global player in the
field. White & Case partners ranked were:
Paul Friedland, Carolyn Lamm, Abby
Cohen Smutny, Andrea Menaker, Jonathan
Hamilton, Phillip Capper, John Bellhouse,
Claes Zettermarck, Michael Polkinghorne,
Christopher Seppl, Stephen Bond, Patricia
Nacimiento and Kim Rooney.
White & Case International Arbitration practice
ranked tier 1 in Chambers USA and tier 2 in
Chambers Europe. Carolyn Lamm, Abby Cohen
Smutny, Paul Friedland, Darryl Lew, Claes
Zettermarck, Stephen Bond, Christopher
Seppl, Phillip Capper, John Bellhouse,
John Reynolds and Michael Polkinghorne
were also ranked individually.
White & Case was named as a leading law
firm in the recently published Whos Who in
Legal Construction Lawyers 2008, with
the Construction and Engineering Practice
highlighted as one of the pre-eminent outfits
for construction arbitration. Five partners from
across our European offices, Phillip Capper,
John Bellhouse, Ellis Baker (London),
Christopher Seppl (Paris) and Claes
Zettermarck (Stockholm), were singled
out as leading individuals.
14
Practitioner Appointments
Paul Friedland (New York) has been appointed as
Chairman of the AAAs Law Committee.
Jonathan C. Hamilton (Washington, DC) has
been named Chair of the Americas Initiative and a
member of the Executive Board of the Institute for
Transnational Arbitration.
Andrea Menaker (Washington, DC) has been
elected as Co-Chair of ASILs Dispute Resolution
Interest Group.
Ank Santens (New York) has been appointed to
the Executive Committee of the Foundation for
International Arbitration Advocacy (FIAA).
Anders Reldn (Stockholm) has been appointed
Chairman of the Arbitration Association for Young
Lawyers at the SCC Institute (SYJ).
News
White & Case achieved a significant victory
for the Republic of Bulgaria in the first Energy
Charter Treaty arbitration to reach an award on
the merits at ICSID.
Patricia Nacimiento, formerly of German firm
Nrr Stiefenhofer Lutz, joined White & Cases
International Arbitration Group as a partner
in its Frankfurt office.
winter 2009
White & CaseWorldwide

If you have any comments or questions regarding this newsletter or any of the matters discussed herein,
please contact any of the following members of the International Dispute Resolution Group:

New York + 1 212 819 8200

Paul D. Friedland pfriedland@whitecase.com
Ank Santens asantens@whitecase.com

Washington, DC + 1 202 626 3600

Peter Carney pcarney@whitecase.com
Jonathan C. Hamilton jhamilton@whitecase.com
Carolyn B. Lamm clamm@whitecase.com
Darryl Lew dlew@whitecase.com
Andrea J. Menaker amenaker@whitecase.com
Abby Cohen Smutny asmutny@whitecase.com
Frank Vasquez fvasquez@whitecase.com

Paris + 33 1 55 04 15 15
Charles Nairac cnairac@whitecase.com
Michael Polkinghorne mpolkinghorne@whitecase.com
Philippe C. Sarrailh psarrailhe@whitecase.com
Christopher R. Seppl cseppala@whitecase.com
John S. Willems jwillems@whitecase.com

London + 44 20 7532 1000

Ellis Baker ebaker@whitecase.com
John Bellhouse jbellhouse@whitecase.com
Phillip Capper pcapper@whitecase.com
Paul Cowan pcowan@whitecase.com
John Higham QC jhigham@whitecase.com
Kathleen Paisley kpaisley@whitecase.com
Aloke Ray aray@whitecase.com
John Reynolds jreynolds@whitecase.com
Robert Wheal rwheal@whitecase.com
Jason Yardley jyardley@whitecase.com

Stockholm + 46 8 506 32 300

Bengt ke Johnsson bengtake.johnsson@whitecase.com
Anders Relden anders.relden@whitecase.com
Claes Zettermarck claes.zettermarck@whitecase.com

White & Case LLP 15

 International Disputes QuarterlyFocus: An Arbitrators Perspective

Almaty + 7 727 250 7491

Yuriy Maltsev ymaltsev@whitecase.com

Beijing + 86 10 5912 9600

Christopher Corr ccorr@whitecase.com
Xiaoming Li xli@whitecase.com

Berlin + 49 30 880 911 0

Christian Wirth cwirth@whitecase.com

Brussels + 32 2 219 16 20
Rolf Olofsson rolofsson@whitecase.com

Frankfurt + 49 69 2 9994 0
Patricia Nacimiento pnacimiento@whitecase.com

Hamburg + 49 40 35005 0
Gerd Lembke glembke@whitecase.com

Hong Kong + 852 2822 8700

Kim M. Rooney krooney@whitecase.com

Mexico City + 52 55 5540 9600

Thomas S. Heather theather@whitecase.com

Moscow + 7 495 787 3000

Igor Ostapets Iostapets@whitecase.com

Shanghai + 86 21 6132 5900

John Leary jleary@whitecase.com

Singapore + 65 6225 6000

Doug Peel dpeel@whitecase.com

Tokyo + 81 3 3259 0200

David Case dcase@whitecase.com
Mark Goodrich mgoodrich@whitecase.com
Robert Grondine rgrondine@whitecase.com

16 winter 2009

White & Case
White & Case is a leading global law firm
with more than 2,400 lawyers in 34 offices
in 23 countries. Our clients value the breadth
and depth of our US, English and local law
capabilities and rely on us for their complex
cross-border commercial and financial
transactions and for international arbitration
and litigation. Whether in established
or emerging markets, the hallmark of
White & Case is our complete dedication
to the business priorities and legal needs
of our clients.
Our approach is based on listening to our
clients needs, taking the time to understand
their business and responding with
effective strategies and solutions, no matter
how big the opportunity or formidable
the challenge. With new technologies,
globalization, consolidation and other forces
continuously changing how business gets
done, we help our clients evaluate the risks
and rewards of ventures designed to advance
their interests.
We work with the worlds most established
and respected companies, including
two-thirds of the Global Fortune 100 and
half of the Fortune 500, as well as with
start-up visionaries, governments and
state-owned entities.
Other Periodicals
Please refer to the White & Case Home
Page, www.whitecase.com, to access
current and archived copies of our many
newsletters and client memoranda.
Leading industry publications consistently
recognize White & Case for exemplary This newsletter is protected by
work, including: copyright. Material appearing herein
may be reproduced or translated with
A Top Ten Global Law Firm
appropriate credit. Due to the general
The American Lawyer
nature of its contents, this newsletter
International Arbitration Team of the Year 2007 is not, and should not be, regarded as
Chambers USA legal advice.
Ranked Top in Global Bankruptcy 2007
The Deal
Project Finance Team of the Year 2008
Legal Business
Ranked in Tier One for Global Banking and
Finance 2008
Chambers Global
Airport and Road Finance Law Firm of the
Year 2007
Janes Transport Finance
Firm of the Year 2007
Asian Counsel
One of the Top Ten Antitrust Law Firms 2007
Global Competition Review
One of the Top Ten Law Firms for Global
M&A 2007
Thomson Financial/Bloomberg
Eastern European Law Firm of the Year 2007
Chambers Global
Oil and Gas Legal Adviser of the Year 2007
Infrastructure Journal
One of the Top Ten Capital Markets
Practices 2007
Bloomberg
Top International Law Firm 2008
Vault Guide to the Top 100 Law Firms
White & Case llp is a limited liability partnership
registered as such in the State of New York.
2008 White & Case WINTER 2009 | LIT_Nwsltr_04376