Episode #3: H.E. Justice Michael Black KC, DIFC Courts

Welcome to Aiken asks, the Middle East disputes podcast co-hosted by me, Changeary. And by me, Graham Lovett, Shane and I co-lead Aiken's Middle East disputes practice. In this series, we host discussions with leading figures in the Middle East disputes community. In each segment, we speak with judges, institutional leaders and eminent practitioners to hear their perspective on topics at the heart of Middle East disputes, including jurisdiction, enforcement and regional trends in dispute resolution. Our aim is to inform, entertain and to offer a bite-sized flavor of the issues on the top of our guests' minds and agendas. Now, to today's guests. Graham, today's guest is someone who is quietly shaped a piece of law that a lot of us, us included, are about to spend many years arguing about. We're joined today by Justice Michael Black of the D.I.F.C. courts, English silk, season commercial and construction disputes arbitrator, and now head of the D.I.F.C. courts, digital economy court. And importantly for us, Justice Black was instrumental in preparing the amendments to the D.I.F.C. law. So if you don't like any of the drafting, you now know exactly who's door to knock on. Exactly. But something tells me, Graham, that the door will be politely but firmly closed. I think that's probably right, Shane. Justice Black has that rare combination of having argued cases as an advocate and now deciding them, which means he sees straight through the arguments the rest of us think are terribly clever. So it's both impressive and a little unnerving. Justice Black clearly plays a central role in the D.I.F.C. courts ecosystem, and so we have a lot of ground to cover. So Justice Black, thank you for joining us and welcome to the podcast. Thank you. Justice Black, it's a tradition on this podcast that we start off by asking our guests a few rapid fire questions to soften them up a bit. So without any further ado, here we go. So the first one's an interesting one because you sit as a judge and as an arbitrator. So if you had to pick one arbitration or litigation to resolve your own dispute, which would it be and why? I think it rather depends on the dispute. If I wanted to be publicly vindicated and I sure I was right, I'd choose the courts. If I had some doubts about my own position and wanted to keep it quiet, I think I might choose arbitrations. I'm sure you don't have any doubts, Martin, so litigation all the time. Justice Black, complete this sentence. The Middle East disputes market in 2030 will be bigger. What's one thing about your job that gets you out of bed in the morning? I still find it exciting to be here in the Middle East, which I love very much. And you never know what's coming across the desk with the development of emerging technologies. There are new challenges every day. It's quite exciting. Dubai arbitration week in three words go very, very busy. And finally, Jonathan Summshin once said that most law is common sense with bells and knobs on. What do you think about that? I agree. And I'm not a huge fan of these judgments or arbitration awards that go through the development of a legal issue. I mean, I think what one really wants to do is just provide an answer to a commercial problem. It may be different in other areas of the law, but I'm a total commercial lawyer always have been. And you're there to serve business, and you're there to produce answers and resolve disputes that seems to me. So more straightforward and simple is best. Yes. I think so, I mean, Jonathan Summshin is somebody who can express complicated matters quite simply. And I think the better and cleverer you are, the simpler you are able to express complex ideas. So now we're going to take a deeper dive into some of our, what I would call more search in questions. So we've worked closely together on the amendments to the DFC arbitration law. What problems did you identify and what were the amendments most trying to solve? Well, I don't think that it was really a matter of solving problems more than modernizing the law. I think you and I both worked on back in 2008 was quite a simple model law based, untinkered with draft, and the reason for that, as I, again, I'm sure she remembers that we were a new jurisdiction and didn't want to frighten the world with overly complex provisions. Times have moved on that the market has matured, the jurisdiction has matured. And I think for me, the underlying purpose of this iteration of the law was really to underpin the developments that have happened since 2008. So an example for that is to give a statutory basis, for example, to emergency arbitrations. Yes, absolutely. And obviously that, that allies with some recent amendments to the deac rules as well, which, which Graham had, had a hand in, just as black, just on this topic, which changes do you think practitioners will feel most immediately in their day-to-day work? I think the biggest impact is probably going to come from the, again, what I call the statutory underpinning of summary or provisional awards. Practitioners will take advantage of those provisions as soon as they possibly can. And do you think there were some reforms that you would have liked to see go further, or areas that you felt were left for another day, trying to strike a ballot, isn't it, between modernizing and not being too adventurous, I suppose, with the, with the current users? Yes, I mean, the one thing that provoked a great deal of debate, it provoked a debate amongst the judges, it provoked a debate between you and me, and no doubt had we ultimately put it out to the consultation with a provoked a debate there, it certainly provoked a debate in Singapore, which I'll come to in a moment, which is a peel on point of law. I'm actually reasonably in favour of the English model of allowing a peel on point of law, it obviously has a mixed review internationally, interestingly the Singapore judges are quite in favour of it too, as was the Singapore Law Commission but it was rejected by the Singaporean practitioners who basically said that if it ain't broke, don't fix it, we're getting a lot of work in the Singapore and this might frighten it away. Now that's not a very principled approach, if I may say the more principled approach, which was taken in the debate between the judges, was that it's not reflected in the model law, this is fundamentally a model law, a jurisdiction, it's really only the English that have gone down that route and so those who were against it thought that we should really stick to the general model law type of draft. The argument in favour of an appeal on point of law is well there are certain industries and certain jurisdictions that welcome it. For example, the shipping community have always been favour of an appeal on point of law because it assists them in the drafting of their standard form contracts and for me I felt particularly since the DIFC is a developing jurisdiction, it may be helpful from time to time and if parties opt in to the procedure for the courts to oversee the development of issues that do arise during the course of operative proceedings. And it's an interesting one as well isn't it because I suppose some parties would say it's a bit of a floodgates argument and floodgates arguments are never attractive and of course, you know, if you go to appeal on a point of law you've presumably got to go through some sort of permission stage but we hosted an arbitration lecture in New York last week and suburned Eda was one of the keynote speakers and he actually had done some analysis of challenges to award based on alleged mistakes made by the tribunal legal mistakes and actually his analysis turned out that there were very very few successful challenges over the years out of some sort of 10,000 or so arbitrations there was a real tiny fraction of those which actually got through that sort of series of hurdles and were ultimately successful. I mean not many challenges at all and a vast majority of the challenges even didn't reach appeal or they were rejected so that sort of fear I think is probably unfounded. I'm very aware of Berners statistics we in fact share a practice manager in our arbitration practice in London and it's true that there's vanishingly small number of successful legal issues, but arbitrations do occasionally throw up some really, really important points of law. It's a shame that they get lost. I don't know whether you're a science fiction fan, but there's always that ending of the original blade run of film where that Ratgahauer character who's just dying and he says that he says they're lost in time, like tears in the rain. And these points are lost like tears in the rain. It's a private procedure. You'll never see the light of day, whereas it would be really beneficial to the legal community, the legal world. If some of these points did become public via being considered by an appellate tribunal. And I'm sure these are points that will be taken up during arbitration week. It's going to be a very interesting discussion going forward. Shifting gears, how should the amended law affect the way the parties draft their arbitration agreements going forward? Well, what we've done in the amended law is as a dot, the English statutory position that the law of the arbitration agreement is the law of the seat. Of course, that wasn't the English common law position, where in fact the Supreme Court found that the law of the arbitration agreement was the law of the matrix contract. I actually believe that indeed had held in a case that it was a DIFC law all along that it was the law of the seat. But be that as it may, now certainly there is a flag for parties that if they wish to have a different law than the law of the seat governing the arbitration agreement, they're going to have to put it expressly in the arbitration agreement. I mean, that does make total sense. And of course, that has created some, well, I wouldn't say confusion, but certainly again, some sort of discussion in the market as to how one ascertains the law of the arbitration agreement. Moving gears yet again, just as black as your experience of both the judge and an arbitrator. Well, in your view, do arbitration practitioners most often get wrong when they come before the court? I think what advocates mostly forget, both before courts and before arbitral tribunals, it is that most cases are one on the facts. And people tend to focus on the crunchy legal issues. I think it's important to know that the arbitral tribunal or the court is going to write its decision, unless it's sitting in an appellate capacity, having first made findings of fact. And so many submissions that I see really just assume the facts and then dive straight into legal issues that may not even arise. I think that brings us back to Jonathan Sumtian's quite really, doesn't it about common sense with bells and knobs on? There's the tendency to perhaps over-egg some issues and underplay but the real ones. Well, there's always an argument that if you've got no case on the law focus on the facts and if you've got no case on the facts focus on the law, but maybe I've just been troubled with cases with no case on the facts that they've gone for the law. And just as like, what do you think is the most overrated trend in international arbitration right now? The debate about the impact of AI. You cannot give your life. You cannot go to a conference. You can't sit down with another lawyer without somebody saying, "Oh, you know, this AI, whatever they mean by that, is going to affect legal practice." But I mean, the reality is that AI products, platforms are just another tool. I mean, I think bugs like hallucination will be fixed. I know that Professor Soskin said as much in his recent book, "How to think about AI," which is really good. I personally don't care how a case is developed as long as the ultimate product is accurate, not misleading and competent. It's funny, you should say, that about AI, because we've had this discussion in the studio before and there's this sort of collective rolling of eyes. We talk about AI, but yeah, and also I think overreliance is a real issue that firms have to grapple with because, you know, arguably overreliance on AI sort of dispenses with a lot of those skills that junior lawyers have to grow up with, you know, proper research skills, proper analytical skills and so on. And it's really easy, I think, to defer to AI. I know clients really like the use of AI because they think in it does, in many cases, we do cost, but there is obviously a danger of overreliance. And I think some of those dangers have sort of come to the fore already. Yes, I mean, we're not there yet. I mean, as we moved towards artificial general intelligence, I think we're now meant to call it super intelligence, then I think the game may change, but at the moment, you can't take again to use the jargon, the human out of the loop. 100%, I do agree with that. So the last question, just like, who gave you the best piece of professional advice you've received and what was it? Well, it was my pupil master and he gave me two very practical pieces of advice. The first here in particular was always take a comfort break at every available opportunity, which has certainly stood me in good stead over the years. The second piece of advice is a bit more respectable. He told me that an advocate should write the judgment or the award for the court of the tribunal. And I come back to what I was saying about facts before, tell the court or the tribunal what findings of facts they should make and why. That's how to begin your submissions, because that's how they begin writing their awards or judgments. And often the legal issues flow from that. If not, at least the legal issues be clarified. And then you can focus on those issues which flow from what you say are the findings that the tribunal should make. It's always an encouraging sign when one gets asked from the bench for a word version of one skeleton argument for that reason. Justice Black, that's been great. Thank you so much for joining us. It's been a real pleasure having you on our podcast. And no doubt, we'll see you. Will we be doing arbitration week? Well, aren't we introducing a new arbitration law, I hope? I think that's the plan. I suppose my question was rhetorical in that case. Looking forward to it. Thank you for joining us and for making the time. Cheers. Thanks a lot. Bye now.