Mohammed A Haque FCIArb, MCInstCES, a Barrister of the Inner Temple
Mohammed is a dual qualified legal /quantum professional. He focuses on resolution or avoidance of commercial disputes. Mohammed, a Barrister of the Honourable Society of the Inner Temple(1997), is also a Corporate Member of the CICES Surveyors. Mohammed has more than 25 years of experience in International Arbitration (ICSID, ICC, UNCITRAL, LCIA) and Construction Adjudication. Legal Asia 500 recognised Mohammed as the No.1 Property and Construction lawyer for five consecutive years for his works in Asia. Mohammed represented major corporations and government-owned enterprises in large and complex disputes.
1. How have you decided to specialise in arbitration and adjudication?
I am a fifth-generation lawyer in my family. Perhaps notions like disputes, conflicts, rights etc. are imprinted in my DNA from time immemorial. My father, an internationally reputed, distinguished lawyer in his jurisdiction of his time managed to have breaded me thoroughly to grow up to be a lawyer first and aspire to retire as a senior judge. I was fed with Cicero through to Dostoyevsky, and was taught to keep a distance from politics, as law and justice to my family was a superior discipline.
Somewhere along the learning curve, I was given the impression that judicial systems are for ‘resolution’ of disputes. Much to my shock, I have learned at my undergraduate law degree that was not the case. Litigation is more useful as a process of enforcing disputed rights. In my short, yet very successful career as a lawyer, I was missing the resolution in the sense of providing solution aspect in the judicial disposals of disputes.
Soon, I discovered that ‘ADR’ at least claims to offer that. I decided to give it a try and hence my specialisation in ADR. Funny enough I started with mediation, settlement negotiation and expert determination. Slowly, I found my background suits international arbitration and adjudications better.
2. How is your arbitration/adjudication practice different from your general litigation experience?
ADR is private and informal up to a degree compared to litigation. It is flexible in that it allows the parties to choose their own tribunal, the venue, the procedure, and in many cases set the timeline. The tribunal inevitably always possess specialist knowledge, bound to maintain confidentiality, and go by the content rather than form. Litigation, on the other hand, is public and formal. Procedurally far more complex, and decided by individuals who may not have the background or special knowledge of the complex technical matters under consideration. The experts may help but that is not as fruitful as it could be if the tribunal is formed of experts. Litigation better suits enforcement of rights, ADR aims to reach solution between parties on matters of dispute. From an international perspective, arbitration at least, in theory, grants an opportunity to resolve disputes by third-party neutrals.
3. Can you tell us more about the role of a Quantity Surveyor and how to become one
a. In construction disputes, Quantity Surveyors play the role of an expert to provide either quantum of claims, or analysis of delay in project works, and associated losses. For example, in an expert report, a Quantity Surveyor analyses the contract clauses and requirements of entitlements. They look at project records, or in the absence of records use standards applicable to construction methods, or uses own experience to come up with quantity or value, or at least inform the tribunal what is the best way to determine the value of works so that any alleged works can be quantified and valued. This, in turn, determines how much damage can be claimed in a dispute. Quantum Experts at ADR tribunals can assess the correctness of any quantum, which saves time for lengthy cross-examination to establish facts, and also provides a quick yet efficient basis for an award.
I will share two examples from my recent experience, in the first one a complex claim of Euro 42 million was skimmed through by the tribunal in the light of the report from the defence side, with the help of another neutral Quantity Surveyor, who was part of the tribunal. The award was issued promptly and the tribunal awarded around Euro 4 million only. The quantum phase hearing only lasted three days because of the expertise of the tribunal as well as the respective experts of the parties. The second one was a mediation and the parties have reached a settlement agreement through the experts meeting together in front of another expert who was mediating, and a claim of more than a million pound was settled at four hundred thousand only involving two days of mediation hearing. It took only one-day long joint meeting of all the parties.
One can become a quantity surveyor by attending academic courses and working in construction companies or professional farms, and finally gaining a professional status from any of the professional bodies.
4. What do you consider to be the biggest challenge in a career in ADR?
The biggest challenge for an individual to become an ADR professional is gathering the experience to develop an expertise. Arbitrators, Adjudicators or Mediators are not running any privatised judicial system. Many times they are trying to bring a solution for the parties to a disputes rather than determining which of the conflicting contentions is legally correct. CIArb offers excellent practical courses to learn the necessary skills and attitude, but getting practical experience is very challenging. If something can be done to facilitate new entrants to train them on the job it will make it easier for many.
5. What do you predict to be the biggest challenge for ADR in the future?
To me, the biggest challenge to the ADR globally in the immediate future has at least two very connected issues. The first is maintaining panels which are sufficiently diverse, i.e. ensuring representatives in panels from every interested party or different types of professionals, yet ensure quality. The 2nd is keeping ADR affordable for everyone, and that prompts capacity building in a huge way. Otherwise, the system would soon face such challenges that will be difficult to manage.
6. If you could experience first-hand one historical event what would it be and why?
I would like to be a part of the first meetings of those who worked together to form an association and practice ADR as a group, which created CIArb an institute. I hold a lot of respect for them, and always feel curious about how they felt, and why the felt as to why ADR should be practised.