5/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Its Scope
Two sets of provisions set out the scope of Qatar's Mediation Law.
Implementing Provisions
Law No. 20 of 2021 On Issuing the Mediation Law in Settlement of Civil and Commercial Disputes consists of four Articles adopting the new law under the Emir's signature.
Article 1 states: The provisions of the Mediation Law shall be adopted in settling civil and commercial disputes, which [law] is attached to this Law.
Article 2 states: "The provisions of the attached law shall apply to the lawsuits and disputes the adjudication of which fall within the jurisdiction of the civil and commercial departments of the Court of First Instance, and the lawsuits and disputes which fall within the jurisdiction of the Investment and Trade Court."
Article 3 ensures no gaps in procedures by saying that: "The provisions of the . . . Civil and Commercial Procedures Law [CCPL] shall apply to the issues for which there is no special provision in the attached law."
The CCPL is beyond the scope of my analysis, but practitioners and mediators will need to keep it in mind as they use mediation in Qatar, especially because Qatar's Mediation Law may leave many procedural gaps that the CCPL may rightly or wrongly fill.
Taken together, these Articles clearly limit the scope of the Mediation Law to civil, commercial, investment, and trade disputes that arise in two specific courts. For a U.S. audience, the Court of First Instance is Qatar's trial-level court. Information about it appears here. Information about the Investment and Trade Court appears here.
The Mediation Law clearly omits application to family law disputes. I'd like readers to comment on whether other laws govern mediation in this context. In the U.S., family mediation is a separate area of practice that requires specific training for mediators. Many family courts in the U.S. routinely refer divorcing parties to mediation to resolve asset distributions and co-parenting responsibilities.
Main Law
More on Scope
The Mediaiton Law in Settlement of Civil and Commercial Disputes (consisting of 33 Articles), sets out several limits to the scope of the law.
Article No. 2 provides:
Without prejudice to the provisions of the international agreements applicable in the State, the provisions of this law shall apply to any mediation agreement in any of the following instances:
1- Undertaking Mediation wholly or partially in the State, unless the parties agree otherwise.
2- The parties' agreement that the provisions of this law shall apply to their dispute, or based on a court order to the parties to settle the dispute through mediation.
3- The contract or agreement, subject of dispute between the parties, states that the laws in force in the State apply thereto.
Accordingly, the Mediation Law applies if the parties agree to mediate in Qatar, the alternative dispute resolution [ADR] clause of the contract or a separate mediation agreement specifies that Qatar's law will apply to the mediation, or a court orders the parties to mediate, apparently in Qatar. This provision supports party control over the law governing the mediation.
Also, while it is not clear what international agreements may come into play by way of this provision, Qatar was an early signatory to the Singapore Convention on Mediation.
Two issues come up with this Article.
First, the first, second, and third subparts seem redundant and, at the same time, provide little specificity. I have interpreted them as indicating that the original contract between the parties may designate that the Mediation Law apply, usually pursuant to a general statement of applicable law or by way of a more specific ADR clause. But, a separate mediation agreement, negotiated after the dispute arises, could also specify that the Qatar Mediation Law would apply. Later Articles support this interpretation.
Next, the second subpart of the Article mentions a court order. By which court? Only Qatari courts? Or, could a Lebanese court, after reviewing the original contract between the parties, order the parties to mediation with Qatar's Mediation Law governing?
Exemptions
Article 3 sets out specific exceptions to the Mediation Law. It provides:
The provisions of this law shall not apply to:
1- Summary lawsuits.
2- Objective and summary execution disputes.
3- The lawsuits to which Qatar Power Company or the companies it establishes, participates in the establishment thereof, or contributes thereto, and the companies that execute exploration agreements, participate in the production, develop fields and share production, and joint venture agreements in the petroleum operations and petrochemical industries field or any natural or legal person authorized by Qatar Power Company to carry out any of the petroleum operations, in accordance with the provisions of Law No. 3 of 2007 on using natural wealth and resources thereof.
4- Any mediation, procedures, or conciliation law specified under other laws in the State,
5- Disputes related to tax assessment decisions, objections thereto and complaints thereabout.
6- Issues where reconciliation is not permissible.
7- As regards mediation, the parties thereof agree to resolve their dispute through arbitration or any other method for settling disputes between them, without submitting before the court, unless the parties expressly agree otherwise.
I am not familiar with Qatari civil procedure or its laws in general, so I cannot comment on subparts 1, 2, or 4 of this Article. I suggest a scholar collect in a guide or article any other "mediation, procedures, or conciliation" laws that would apply in lieu of Qatar's Mediation Law.
Subpart 3 exempts from mediation all or most of the largest economic sector in the country. I assume that most of the original contracts in this sector contain ADR clauses that likely prefer the use of arbitration. Thus, even without this exemption, subpart 7 would preclude mediation in most natural resource disputes.
Subpart 5 exempts tax related disputes. Someone involved in the drafting process can shed more light on this exemption. In the U.S., mediation involving government decisions typically takes place under ADR programs established within the particular agency or ministry. If those programs do not exist in Qatar, they would be a logical step in building the "infrastructure" for modern mediation in Qatar.
Subpart 6 is vague in its scope. In the U.S., most, if not all, state statutes preclude mediation of disputes arising from unlawful contracts. Accordingly, the parties could not mediate a dispute involving the sale of illegal drugs or prostitution, for example. But, this subpart seems to limit mediation in other contexts, as well. Courts will need to flesh out the scope of this exception. I suggest courts interpret it narrowly.
Given the limitation of my familiarity with Qatar civil procedure and other laws, I invite lawyers practicing in Qatar to post comments providing additional information about these Articles.
Why this Matters
As Qatar builds the infrastructure to support modern mediation, it makes sense that laws would focus early on civil and commercial dispute mediation. People bringing these claims will often have experienced counsel who are familiar with mediation. Parties may wish to resolve the case quickly using a facilitated negotiation process. Mediation can resolve disputes more efficiently and more cheaply than litigation or arbitration. In addition, mediation is better at preserving business relationships. In the hands of a skillful mediator, the parties can repair the existing relationship and enhance future business opportunities. Or, they can terminate the relationship with fewer regrets, less blame, and less resentment.
I'll need to have conversations with lawyers and arbitrators working in the petroleum industry of Qatar to understand the broad exemption of disputes involving the Qatar Power Company.
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