Tribunal system could be best of both worlds

France is rightly proud of its tribunals. It has its tribunaux de grande instance along with more specialist ones. Even the highest court in the French justice system, the Cour de Cassation, was originally established as the Tribunal de Cassation by law on November 27, 1790.

In the United Kingdom, au contraire, tribunals have often been referred to as the Cinderella of the justice world. Some tribunals in the UK hear complex multimillion-pound claims lasting many weeks, such as a compensation claim in the Lands Tribunal.

Many tribunals, such as the Traffic Penalties Tribunal, deal with a large volume of low-value matters (in which video hearings are the norm, and other online dispute resolution techniques are being tried).

The linguistic divide between neighbouring jurisdictions, one common law and one civil law, may wrongly relegate tribunals to the inferior status of also-rans in the minds of English-trained lawyers.

Equally, it would be a mistake simply to equate tribunals with courts and to use the words interchangeably, as the French have done with their highest court.

So, if neither the English nor the French have quite got it right, there must be an opportunity to do better, particularly in the Arabian Gulf countries, a region where the combination could create the best of both (common and civil law) worlds.

As maturing Gulf economies find the need to support sector-specific legislation with specialised dispute resolution, the tribunal model could provide not only desirable flexibility in the constitution of the panel, but also an ability to introduce regional, cross-sectoral expertise.

A tribunal should not just be a court by another name, and the benefits of its particular structure should be fully recognised and appreciated.

Legal developments in the Gulf provide an opportunity in terms of dispute resolution, which may result in a uniquely Gulf savoir-faire.

The French accord proper status and respect to their tribunaux. As the word is derived from Latin through Old French, it should be no surprise that the French have a finer etymological understanding. It is not the only example.

Take the Polytechnique, a grande école with a strong multidisciplinary scientific emphasis.

It remains true to its name. In England, on the other hand, under something called the “binary divide”, polytechnics (though now converted to universities) became the unloved ugly sister of tertiary education.

In England, tribunals are not courts. The higher English courts have an inherent (general) jurisdiction.

English tribunals are creatures of statute with clearly defined (limited) jurisdiction. As such, they are dispensers of specialised justice on a strictly circumscribed basis.

That may give the appearance of narrowness.

But tribunals also possess an attribute that is too often overlooked. There is much more flexibility in how a tribunal can be constituted. Tribunals usually comprise a legally qualified chairman but also include an element of informed lay representation. The lay element will bring specific expertise such as accounting knowledge to tax disputes.

I have written previously about the opportunity for innovative thinking in developing the legal architecture for dispute resolution in the Gulf, and the need to look for region-specific solutions.

Specialist courts (or circuits within courts) are part of the picture.

There may be particular value in looking at specialist tribunals as a part, too, especially for the determination of complex, high-value competition law or tax issues.

The United Kingdom Competition Appeal Tribunal describes itself as “a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy whose function is to hear and decide cases involving competition or economic regulatory issues”.

It combines specificity of function with a breadth of expertise, dependent in large part on the knowledge of its lay members drawn from academic, administrative and professional backgrounds.

Such a combination should be readily transposable. (Specialist tribunals are not unknown in the Gulf. A rent tribunal has existed in the UAE for some time.)

There are also at least two further regional advantages that should be taken into account.

First, there is a common language across the Arab world. Secondly, Gulf countries have consistently welcomed judges from other Arab countries within the judicial fold. Those two regional advantages work in tandem and are mutually reinforcing. In the UK, “cross-disciplinary expertise” tends to be drawn very substantially from domestic practitioners and exponents.

In the UAE, an Egyptian, Moroccan or Jordanian judge can sit in court because they speak the same language and understand a shared and broadly similar legal heritage.

There is no reason why the same would not hold good for specialist tribunals across the Gulf. Given the regional advantages just identified, the pool of those with appropriate knowledge, from which both tribunal chairmen and lay members could be drawn, would be much wider.

Egypt, Morocco and Jordan all enacted competition laws more than a decade ago. (The UAE did so more recently with Federal Law No 4 of 2012, and implementing regulations that came into effect in October 2014.) Competition policy will inevitably generate disputes that need to be resolved.

A competition, or other specialist, tribunal could draw, at least in its formative years, on widespread expertise from across the Arab world for tribunal chairs or lay members alike.

A combination of an Emirati tribunal judge experienced in UAE law together with lay members possessing relevant specialist knowledge but who may come from elsewhere in the region (or even further afield) could create a distinctively Emirati forum for specialist dispute resolution and a high calibre tribunal that will instil market confidence – a regionally-specific optimal solution.

Michael Patchett-Joyce is a commercial lawyer and arbitrator, based in London and the UAE.

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