Alternative dispute resolution, Intellectual property and Offset contracts

Alternative dispute resolution 

Alternative dispute resolution remains privileged in international trade, partly because it unloads some of the burden on state justice. Focus will be first placed on arbitration, and second, on the study of conciliation and mediation.

1. The collection and classification of Arbitral laws on the basis of origin 

With the exception of Saudi Arabia, arbitration laws in Arab countries can be classified according to the influences that led to their conception: the UNCITRAL legal model and the French law of 1980-1981.

2. Anglo-Saxon practice of arbitration

The practice of Arbitration in the Arab speaking countries does not differ from their Western counterparts, including continental Europe.

Indeed, the practice of arbitral proceedings – from the constitution of the arbitral tribunal to the rendering of the award – is largely patterned on Anglo-Saxon practices

3. A comparative practice of exequatur

Once the arbitral award has been rendered, it is the national judge who must make it enforceable, and may more or less be efficient in an arbitral tribunal. Initial analysis shows that the Lebanese and Tunisian judges are the most open for this.

4. The arbitral legal order

With regards to the arbitral legal order, Professor Emmanuel Gaillard stated that we are in the world of ideas1.

Professor Gaillard continues by noting that the arbitral legal order has all the characteristics of a state legal order. Drawing on his reflections, the recent arbitral legal orders considered by Arab judges will be analyzed, of which Lebanese judges were one of the first to recognize them.  

Questions for debate: What are the obstacles Arab judges face in their practice of exequatur? Are these internal or external to the justice system? Is the recognition of the arbitral legal order confirmed in the jurisdictions of the Arab countries?

Intellectual property

1. Comparative Analysis of Intellectual Property law in Arab Countries

A comparative law analysis of Arab countries will be used to classify national laws according to their origin as well as their content. The aim is to highlight the existence of legal patterns. In so doing, the analysis begins with enumerating national laws.

2. The real situation of intellectual property in Arab countries

The situation of intellectual property in Arab countries in practice is concerned with the effectiveness of copyright protection, locally and abroad. The former relates to created and protected works and the latter of the legislation adopted.

Questions for debate: Is intellectual property law fully exploitable as well as exploited? Does IP law encourage technological innovation through the protection of national and foreign works?

Offset contracts

In the context of international public contracts, offset contracts correspond to all the economic compensation requested by the purchasing country in order to authorize the signature of the public contract within its territory. In concrete terms, an offset contract is an obligation to create a local added value. These may relate to conditions that would benefit the host country such as transfer of technology, job creation, training, etc.

1. Collection and analysis of offset regulations

• Offset regulations may vary considerably from one country to another. However, there are some common features:

• the threshold, amount of the public contract beyond which the counterparty obligations are mandatory;

• the value of the offset obligation, a percentage of the main contract which represents the added value to be created locally;

• the eligibility criteria designating the industrial sectors favored by the buyer country;

• the penalties, whether they are discharges or not, in the event of non-performance.

These main characteristics are not always present in one law only. Rather they are scattered in several sources such as in investment laws and public laws. The purpose of the Compendium and Analysis of Offset Regulations is to identify the appropriate regulations and to look for the features mentioned above in order to reconstitute them.

2. Case studies

Saudi Arabia and the United Arab Emirates are among the largest offset claimants in the world with the primary objective of acquiring advanced technology and diversifying their economy2. Their considerable use of offset has already begun to materialize, allowing local industries to succeed (the current TGV is under construction in Saudi Arabia and fighter jets in the United Arab Emirates). This success, unprecedented if we include Brazil, is contrasted with Arab countries in the Maghreb, particularly Tunisia, Morocco and Algeria. Unlike a comprehensive use of offset in the Gulf states above, these countries allow for offsets but without any real effect. While international public contracts seem to allow for offset provisions, these provisions are never acted upon. The disparity seems to move beyond ratio legis. Instead, it seems like they are factors considered by the contracting entities when awarding public contracts, in addition to price and quality of products.

Questions for debate: Why do some Arab countries manage to benefit from the best of offset while others are barely exploiting them, if at all? Can offset proposals eventually replace corrupt practices in the awarding of international public contracts?

2 Source : Avascent