Introduction

Any discussion of arbitration in the Middle East will inevitably elicit a great number of varied and contrasting opinions. At one end of the scale are comments based on the fact the Middle East has a strong tradition of private out of court dispute resolution dating back thousands of years. The Prophet Mohammed arbitrated disputes and even used "takhim" (the Arabic word for arbitration) in his conflict with the tribe of Banu Qurayza.^[1] At the other end of the scale are fears that arbitration, or at least what most TDM readers would consider to be arbitration, is a European or Western process, not suited to (or not trusted for) the settlement of disputes in the Middle East. People at this end of the spectrum may point to the infamous comments of Lord Asquith in Petroleum Development Limited v The Ruler of Abu Dhabi, where, when asked to consider the law of Abu Dhabi, he said "The Shekih administers a purely discretionary justice with the assistance of the Koran; it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments".^[2]

As with many things in life, reality lies somewhere between the two extreme positions. However, despite the contrasting opinions and perceptions, one thing is certain; arbitration is becoming ever more significant in the Middle East and the parties are increasingly willing to have disputes addressed within the region rather than relying on French, English or Swiss seats. Regional arbitral centres are proliferating and States are updating (or creating) arbitration laws.

It was the increasing use of arbitration in the Middle East, and in particular the increasing use of Middle East seats, that prompted us to issue the Call for Papers for this TDM Special. Despite the widely broadcast good news stories of new arbitration centres, updated statutory regimes to support arbitration and national courts recognising and enforcing arbitral awards, there continue to be reports, some no doubt apocryphal, of courts assuming jurisdiction in spite of arbitration clauses and arbitral awards not being enforced for what appear to be minor procedural defects, such as, a witness not giving evidence under oath,^[3] a copy of the arbitration agreement not being appended to the award,^[4] or the award not being issued in the name of the local Emir.^[5] This in turn led us to ask the question: "what are the expectations and challenges for the future of arbitration in the Middle East?"

This Special consists of eighteen papers, which between them discuss the arbitral regimes in Bahrain, Egypt, Iran, Iraq, Jordan, Lebanon, Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Syria, Turkey and the United Arab Emirates (UAE), together with investment treaty arbitration and general trends in the MENA (Middle East and North Africa) region. There are, of course, no definite answers to the question of what are the expectations and challenges for the future, but we do hope that these papers show that there are a number of themes which resonate across the region:

• The enactment of legislation to support arbitration based on the UNICTRAL Model Law is increasing. Bahrain, Egypt, Jordan, Oman and Syria all have arbitration laws influenced by the Model Law. Saudi Arabia enacted a new arbitration law in 2012^[6] and Palestine^[7] and the UAE^[8] are both considering new Model Law based arbitration laws, although it is fair to note that the gestation period for some of these laws has been considerable. One paper in this Special even considers whether there is a case for a uniform arbitration law across the Gulf Cooperation Council (GCC) States.^[9]
  
  
• The courts of the region are increasingly willing to recognise and enforce arbitral awards, not only under the New York Convention, but also under a number of the regional enforcement treaties, in particular the Riyadh Convention^[10] and the GCC Convention.^[11] Nonetheless, there are still bumps along the road, for example the Canal de Jonglei case from the UAE in 2013 where the UAE courts refused recognition of an ICC award from Paris on the basis the UAE courts did not have jurisdiction, given neither party was domiciled in the UAE and the subject matter of the dispute was to be performed outside the UAE.^[12]
  
  
• The use of arbitration by Arab parties appears to be increasing. Arbitral centres continue to open in the region and case numbers are increasing.^[13] This is reflected not only in private arbitration, but also in the fact that Arab parties are now resorting to arbitration under MENA regional investment treaties, particularly when more traditional bilateral investment treaty protection may not be available to the Arab investor.^[14]
  
  
• Public policy still plays a major role in any discussion about arbitration in the Middle East. The unruly horse of English public policy^[15] has been renamed an "Unruly Arabian Horse"^[16] and also a "Unruly Camel"^[17] , but the fear remains that once you are astride the unruly animal you never know where it will carry you. Some Middle Eastern courts still appear quick to rely on public policy as a reason to defeat an arbitration clause.
  
  
• Support for arbitration can be found in the shari'a principles that underpin the legal systems in almost all Arab states, but arbitral users and practitioners in the Middle East must ensure they understand and respect these principles if commercial arbitration is to continue to grow in the region.^[18]

The past decade has seen incredible change and there can be little doubt that the future will bring continuing evolution. The growth in Islamic finance, for example, is likely to see an increased demand for arbitrators versed in Islamic principles and arbitral centres and rules that can deal with Islamic finance, such as the i-Arbitration Rules at the Kuala Lumpur Regional Centre for Arbitration (KLRCA).^[19] The Arab world could even lead the way in the evolution of global arbitral principles if the Dubai International Financial Centre (DIFC) is to press ahead with its innovative plans to refer disputes concerning the enforcement of court judgments to arbitration so that the underlying court judgment will then be converted into a DIFC arbitral award that can be enforced around the world under the New York Convention.^[20]

Overall, while many challenges remain, the future for arbitration in the Middle East looks promising and certainly dynamic. We hope that this Special can contribute in some small way to discussions on the development and growth of arbitration in the region, and are grateful to all the authors for their papers and to the TDM editorial team and the publisher for their support in putting together this Special.