Peers and clients say:
"Mohamed is a highly regarded commercial arbitrator and a civil law specialist"
Prof. Dr. Abdel Wahab is professor of law (Cairo University); founding partner and head of International Arbitration Construction and Energy Groups, Zulficar & Partners (Egypt); member of the ICCA Governing Board; vice-chair, ICC Governing Body for Dispute Resolution Services; vice president global of the CIArb; president elect of the CIArb (2025); co-chair, IBA Arab Regional Forum; dean of the Africa Arbitration Academy; chair of the International Expert Advisory Committee of the Permanent Forum on China Construction Law; and member of the International Commercial Expert Committee, China International Commercial Court.
What qualities make for a successful arbitrator?
A successful arbitrator is: (i) well read and prepared; (ii) not predisposed; (iii) fully impartial and independent; (iv) has excellent communication skills; (v) has a sharp analytical mind to distill the core and important issues in dispute; (vi) pays great attention to details; (v) does not shy away from taking decisions as and when warranted; (vii) appreciative of cultural differences in international arbitration proceedings, and (vii) is able to efficiently conduct the arbitral proceedings and to draft clear, intelligible and well-reasoned awards grounded in the facts and the law.
What steps can be taken to ensure that arbitrators are more comfortable with the digitalisation of international arbitration?
The digitalisation or use of ICTs and AI applications in arbitration is indeed topical, timely and pervasive. Owing to the ICT revolution well-established principles of arbitration are being reconsidered and reconfigured. Having advocated for the use of technology in arbitration and online dispute resolution (“ODR”) ever since 2001, it is now a reality that integrating ICT and AI applications in arbitration proceedings is inevitable. As Marshall McLuhan (Understanding Media, New York: McGraw Hill, 1964, p.161) once wrote, when “a new technology comes into a social milieu it cannot cease to permeate that milieu until every institution is saturated”. Arbitral proceedings can be grouped into two broad categories: (a) technology-assisted arbitration proceedings, where the role of technology is limited to the provision of an adequate and secure medium of communication and information exchange and/or utilising software and ICT applications to specific aspects of the arbitral proceedings to utilising software and ICT applications to specific aspects of the arbitral proceedings to assist the parties and arbitrators; and (b) technology-based arbitration proceedings, where fully-fledged application of cutting-edge technology is utilised to resolve disputes and render decisions. We are already witnessing the impact of introducing “predictive justice”, “blockchain” applications and many AI technologies to the world of international arbitration. Arbitrators, who aspire to stay in the game, need to keep up with technological developments and stay ahead of the curve by familiarising themselves with new technologies, their potential use in arbitral proceedings and the basics of staying safe and secure online when interacting digitally, by mitigating and minimising the risks associated with the use of ICT applications and new technologies through encryption technologies, firewalls and passwords, as well as privacy enhancing technologies. This will not only offer arbitrators a much-needed edge when conducting proceedings, issuing orders and awards, but also when deciding technology related disputes. On a different note, whilst the human nature of arbitrators was never challenged or brought into question, artificial intelligence applications are now threatening this quintessential element of the arbitral process. For the present generation, it may be a bliss that the world has not yet evolved to a stage where humans and AI forms are infused and integrated, but the future beholds such possibility together with its associated risks and challenges.
How big is the issue of geographic exclusion in arbitration (i.e. where small states don’t have the infrastructure to participate effectively in arbitration proceedings)? How could this be addressed?
I prefer to speak of “inclusion” rather than “exclusion”. States which aspire to actively and effectively participate in arbitral proceedings and in shaping the future of arbitration must possess the necessary infrastructure. This requires developing and possessing arbitration-friendly legislative and judicial frameworks that are aligned with best principles and practices in arbitration. Moreover, states should also develop the requisite expertise, capacity and experience in prosecuting international arbitral proceedings, and should make prudent choices regarding the appointment of counsel and arbitrators in these proceedings. Furthermore, in today’s world that is powered by ICTs, the digitalisation of arbitration can create an uneven playing field, and so small states are expected to invest in technology to ensure that they have the requisite technological infrastructure that enables them to effectively participate in arbitral proceedings.
Practitioners report a marked increase in international mediation, even when there are arbitration clauses in contracts, due to cash-strapped businesses seeking early settlement. Is there a danger arbitration could take a back seat to mediation?
The dispute resolution spectrum includes numerous dispute resolution processes, and arbitration and mediation are among the notable and successful processes. However, there is a major misconception, that is: the success of one dispute resolution process means the demise of another. This is simply wrong. By way of illustration, the success of litigation in certain countries has not led to a decline in arbitration cases and both systems have co-existed. Thus, the success of mediation will not adversely affect arbitration and vice versa. In fact, the success of both processes positively contributes to the overall success of dispute resolution and is demonstrative of safeguarding the rule of law. That said, if one looks at credible statistics, it will be obvious that both arbitration and mediation cases are on the rise, which suggests that the success of either does not lead to the failure of the other. In any event and in a nutshell, on a global level, arbitration remains the business community’s preferred dispute resolution process for many reasons, including the finality of arbitral awards and their enforceability in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), which remains one of the most successful treaties worldwide.
What has been your greatest achievement to date?
Honestly speaking, one’s achievements are not simply measured by sheer personal successes or acknowledgements, but by the contributions made institutionally and to the lives of others. I fully endorse Robert Louis Stevenson’s memorable words that one cannot simply judge each day by the harvest one reaps but by the seeds that one plants. That said, I do consider that re-positioning our firm as a world class leading arbitration practice and building its 25-plus member arbitration group (inclusive of partners, seniors and associates) is my most valued achievement alongside my mentorship and academic contributions towards assisting in the preparation of a new generation of qualified practitioners. Accordingly, I am of the firm view that contributing to the building of the next generation of talented practitioners is a significantly overwhelming achievement that is no less rewarding compared to receiving the 2017 GAR award for the best Mediterranean/ North African Arbitration Practice, the 2018 ASA Prize for Advocacy in International Arbitration, the 2021 and 2022 recognition on the Africa Powerlist of International Arbitrators, the 2022 recognition as the most influential legal Academic and the 2021-2022 listing among the International Arbitration Global Elite Thought Leaders. There are also several landmark cases that our arbitration group secured wins in for our clients even when the most optimistic minds thought that the outcome would not be favourable. To me, the fact that others see that we make a difference is a true mark of success.
What advice would you give to younger practitioners hoping to one day be in your position?
Work hard, enjoy what you do, never give up, be patient, let your work and intellect speak for you and be confident, but never develop an inflated pride or an over-sized ego. He who speaks without modesty will find it difficult to make his words good. Young practitioners must also recall that knowledge is power and that there are no shortcuts to the top of a palm tree. Finally, those who aspire to become A-class practitioners, their TOOLKIT should include “t” for tenacity, “o” for organization, “o” for “on the ball”, “l” for liveliness, “k” for knowledge, “i” for integrity and “t” for tactfulness.