x Abu Dhabi, UAETuesday 25 July 2017

Saudi proposal for London settlements not the only option

David Cameron, the British prime minister, had a pretty long agenda of matters to discuss with Arabian Gulf policymakers on his recent visit to the region.

Let's hope that David Cameron, the British prime minister, found time in Saudi Arabia to discuss arbitration. Andrew Cowie / AFP
Let's hope that David Cameron, the British prime minister, found time in Saudi Arabia to discuss arbitration. Andrew Cowie / AFP

David Cameron, the British prime minister, had a pretty long agenda of matters to discuss with Arabian Gulf policymakers on his recent visit to the region, what with the tribulations of BP and the trials of BAE Systems very much on his mind.

But let's hope he finds the time while in Saudi Arabia to raise a subject that could prove to be vital for future international commerce in the kingdom, and could also affect the business culture of other GCC states: the matter of dispute arbitration between international companies and those from Saudi Arabia.

Just recently it emerged that Saudi Arabia wanted the UK government to set up a confidential court in London to help settle big international commercial disputes arising out of the kingdom.

The suggestion is an intriguing one. Some global firms doing business in Saudi Arabia have long worried that, in the event of a commercial or contractual dispute arising out of normal business, they might find themselves disadvantaged locally.

The repercussions of the long-running corporate feud between the Al Gosaibi family and Maan Al Sanea's Saad Group seems to illustrate the point perfectly. There have been legal actions and court rulings in at least three major global jurisdictions - London, New York and the Cayman Islands - but international creditors to the two warring companies are still out of pocket, to the tune of as much as US$12 billion (Dh44.07bn).

The Saudi approach to the dispute was to encourage Al Gosaibi and Saad to settle their debts with Saudi banks first, then to turn their attention to other regional creditors, before doing anything to settle obligations with non-GCC banks.

It has rumbled on for more than three years, but so far none of the international banks have had any serious attempt at repayment. The bankers, and even the judges, mutter about "enforcement" in the kingdom, which means they harbour doubts that any decision given by a non-Saudi court could be acted upon there.

Some have gone through the legal process of reclaiming debts, but mainly out of a sense of legal obligation, with little real expectation they would get a decision in their favour, at least not without years of expensive litigation.

The plan for a London court, on the face of it, might be a way to resolve that impasse. If Al Gosaibi or Saad had signed up to such an arrangement at the beginning of the dispute, binding and confidential arbitration in London could have led to a speedy resolution, and saved millions of dollars of lawyers' fees elsewhere in the world.

London is already regarded by many as the "lawyer of the world", and not just in the high-profile libel and defamation actions that make the headlines.

The Saudi authorities have made some progress recently at improving their domestic dispute resolution procedures. But if Saudi deliberations were seen to be confirmed by the London courts it would certainly give international investors more confidence in their business dealings there. The ground rules would have to be clearly spelled out, of course. To assuage Saudi sensibilities about the country's legal system, it would have to be made clear that the London procedure applied only to genuinely international disputes, involving Saudi corporates on the one hand and non-Saudis on the other.

Submission to the arrangement would also have to be entirely voluntary between the two parties, who would be further reassured by discretion and confidentiality.

But lawyers who have looked at the proposal suggest the big stumbling block will remain enforcement. A Saudi party to a dispute might very well decide, even after voluntary, confidential and binding arbitration, that it has been hard done by the London court, and simply refuse to hand over assets held in the kingdom. At which point, the whole matter is back to square one.

Perhaps London is not the perfect setting for such a procedure after all. Dubai has set the pace on peaceful resolution of commercial disputes in the region via the DIFC Court, and may be a more acceptable locale to both Saudi and non-GCC parties.

fkane@thenational.ae