Legal Foundations for Reconstruction: One-on-One with Nayiri Boghossian
Nayiri Boghossian is a Syrian lawyer currently based in Dubai. She graduated with a bachelor’s degree from the Faculty of Law at the University of Damascus in 1997 and trained at the law firm of Professor Jacques El-Hakim. She then traveled to Canada where she undertook a master’s degree in law at McGill University in Montreal. Nayiri subsequently returned to Syria where she worked and formally qualified as an attorney-at-law. In 2002, she officially moved to Dubai after she was offered an in-house counsel role at Nestlé Middle East. A few years passed before she joined the law firm of Khasawneh and Associates in Dubai where she later became a partner. Following the merger between Khasawneh and Associates and the leading British international law firm Eversheds LLP in 2011, Nayiri became a disputes partner before being promoted to head up the firm’s disputes team in the Middle East. While living in the UAE, she managed to find time to take a year off to pursue a second master’s degree in law at Georgetown University in Washington, D.C. before qualifying as an attorney-at-law in both New York and France. Towards the end of 2016, Nayiri joined her current firm in Dubai Al-Owais Legal as a partner. It is a boutique disputes firm focused on arbitration and complex commercial litigation. The Syrian Law Journal wished to interview Nayiri to discuss her career, her experiences in both Syria and the UAE, and what measures she thinks can be pursued in Syria to prepare the legal foundations for reconstruction.
You moved to Dubai at a time when the Syrian economy was starting to undergo a transformation from state-run command socialism to a liberalized social market economy that encouraged more private sector investments. During that decade, substantial legal reforms were in the pipeline. They led to the eventual issuance of the Companies Law which permitted 100% foreign ownership; the new Investment Law; the new Commercial Code; the Competition Law and the Anti-Dumping Law; the Employment Law which balanced the protections for both employers and employees; the Arbitration Law based on the UNCITRAL Model Law on International Commercial Arbitration; laws that encouraged private investments in the electricity sector, schools, universities, industrial parks and real estate development projects; legislation that liberalized lease contracts which improved the status of landlords and by extension the property markets; a modern legislative framework for intellectual property; laws that led to the reintroduction of private banks, private foreign exchange businesses and private insurance companies as well as the launch of a stock market; new public procurement legislation and work on the Public-Private Partnership Law which was delayed by five years but finally ratified in 2016; and new taxation laws that brought rates down to competitive standards. The suggestion here is that there were many opportunities for a lawyer such as yourself to not only advise potential clients on the new legislative environment that was emerging in Syria but also to help shape it. At the same time, Dubai was undergoing an economic transformation of its own where new foreign ownership rules and the passage of other laws led to a construction and real estate boom and much more. You had the choice of working in countries that were both heading in similar trajectories though at different speeds. What made you decide that in spite of the changes that Syria was starting to witness, it would be preferable to seek a legal career in Dubai?
When I was very young, I was privileged enough to travel with my parents quite frequently. I was also very fortunate to be born into an environment that was quite multicultural. I come from an Armenian family and was raised in an Arab country. Both my parents speak foreign languages. All these elements contributed to broadening my horizons and instilling a desire in me to experience life beyond the borders and boundaries of my home country. As a teenager, I was fascinated with traveling and learning foreign languages. I then went to law school in Damascus and started dreaming of having an international career. The year I spent in Canada reinforced my desire to live abroad. Therefore, when I returned to Syria, I was keen on finding an opportunity that would be the stepping stone towards having an international career. When the opportunity presented itself, I immediately grabbed it. So, I guess the short answer to this question is that I was pursuing a dream.
Once the global financial crisis reached Dubai in 2008 and 2009 forcing an economic slowdown and threatening job security for many expatriates, a lot of companies and international law firms based in the Gulf region started to shift their attention towards Syria as it appeared to be the next frontier market. At that time, did you consider steering your career into the direction of possible opportunities that could arise in Syria? Given that the economic situation in Dubai was unpredictable during those years, did it ever cross your mind to return to Syria where a boom was anticipated in the foreseeable future?
I remember those days very well. I was watching what was happening in Syria closely and was very happy that foreign investment had started pouring into the country and so many projects were underway. Nevertheless, I was very comfortable and happy where I was. The UAE had been very good to me. My career took off the minute I had set foot in this country. So the economic downturn did not destabilize me and I had no reason to consider moving anywhere at the time.
What similarities and differences did you discover in your experiences when working as a lawyer in both Syria and the UAE? Can you briefly compare and contrast the legal practices and court systems of both countries? Even though the legal systems of Syria and the UAE are derived from the civil law tradition and both countries looked towards the Egyptian model as a reference to develop their legislative texts, what can they learn from each other?
As you correctly mention, both countries’ legal systems are derived from the Egyptian model. The legislation and the court systems are highly similar. However, there are also a number of differences.
A key difference between the court systems is speed. In Syria, legal proceedings are very slow. It takes many years to obtain a judgment but that is not the case in the UAE, where there is an emphasis on speed and efficiency.
In terms of legal practice, the UAE market is dominated by international firms. The practice in these big firms is entirely different from what we know in Syria or other Arab countries where you have the solo practitioner model. In international firms, the operations are on a completely different scale; big projects and big disputes go to these firms. They have built brands and they sell a service. There is a lot of emphasis on client care. Both types of practices have their own advantages and shortcomings. A key advantage when you are a solo practitioner or a small practice is the personal relationship that you have with the client.
In my view, it is for each practitioner to choose the structure of the firm and style that makes him or her comfortable. However, it is important to follow and understand the trends of the profession if one wishes to attract international clients or progress beyond just Syria.
As Syria looks towards post-conflict reconstruction and draws up plans to attract both local and foreign investment on a considerable scale, investors will be aiming to secure their legal rights as best they can. From the perspective of entering into commercial transactions, what legal reforms would you recommend that would make both local and foreign investors comfortable pouring their money into the Syrian economy?
In my view, the legislative framework itself is in place. There are perhaps certain practices that need to be changed.
As a disputes lawyer, what comes to my mind is how disputes will be handled. When an investor enters a country, he needs reassurance that any dispute which may arise will be dealt with fairly and efficiently. An investor has to be reassured that if his case is heard before the Syrian courts, he will not face discrimination. Courts need to understand the importance of attracting foreign investments and their role in reassuring foreign investors by ensuring due process, fair judgments and a certain speed. Syria will need to put in place certain mechanisms and effectuate certain changes to achieve these goals.
As you know, whenever investors enter a foreign market and are unfamiliar with its laws and court system, they prefer the sanctuary of an arbitration clause in their contracts as an alternative to litigation before the courts in the event disputes arise which they so often do. Syria was one of the earliest signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards back in 1959. It became a member of the International Centre for Settlement of Investment Disputes (ICSID) in early 2006 and signed the Mauritius Convention on Transparency in Treaty-based Investor-State Arbitration in 2015. Syria also replaced its outdated 1953 Arbitration Chapter in its Civil Procedure Code with the passage of its stand-alone Arbitration Law in 2008, which it based on the UNCITRAL Model Law on International Commercial Arbitration. However, it is not a thoroughly tested piece of legislation because the conflict interrupted its progress in 2011. Back in August 2017, the Syrian Law Journal published an article on developing a culture of arbitration in Syria and since then, there have been some signs that this is starting to take shape gradually. For instance, you now hear of more arbitration centers opening up in the country but there is surely still a long way to go. As an experienced disputes lawyer and a practicing arbitrator, what are some fundamental steps that Syria can take to establish itself as a reliable arbitration-friendly jurisdiction to give potential foreign investors comfort as they consider playing a role in the reconstruction process?
As you correctly mention, foreign investors may prefer to opt for arbitration for the reasons we discussed. Again, the legislative framework is there and you have listed all the relevant pieces of legislation and international conventions. However, arbitration is of no use without the help of the judiciary. A foreign investor may very well obtain a favorable award from an arbitral tribunal but to enforce it in Syria, he has to go through the local courts. Therefore, the first step is to work with the judiciary so that they better understand arbitration and its role in helping the country. It is common for the judiciary in many parts of the world, including developed countries, to approach arbitration with a certain animosity. Therefore, a complete shift in perspective is needed.
If we take the New York Convention as an example, it sets out specific grounds that would allow a local court to nullify a foreign arbitral award. The Syrian courts should abide by these grounds and the Convention generally. They should not expand on them or come up with grounds to annul a foreign award.
Syria can also work towards attracting the arbitration proceedings themselves. Such a goal can be achieved by creating an arbitration center in Syria that conforms to international standards and ensures that the Syrian Arbitration Law is in line with modern practices.
In parallel, arbitration should be promoted within the local legal community and the business community so that it is better understood by users.
Looking forward towards reconstruction and the roles lawyers will play, what policies can the Syrian Bar Association adopt to contribute to the development of the legal profession in Syria?
The Syrian Bar Association can contribute to the development of the legal profession through adopting rules that are more in line with international standards and practices. For example, if you are not practicing in Syria, your membership in the Bar Association gets canceled. Traditionally, this was the case in many jurisdictions but the profession has changed as well as the rules it is subject to. It is now very common to qualify in one place and practice in another. If you take the New York Bar as an example, it is one of the most popular and well perceived bars and you have the option of becoming a member even if you have not practiced or envisage practicing in New York. Let us take France as another example where the legal system is closer to the Syrian one. Even France now allows you to become a member of the Bar without practicing in the country. So, I would say the first step is to reexamine the rules and regulations of the legal profession to ensure that they are up to date with modern practices.
How big is the community of Syrian lawyers in Dubai and the UAE in general? How are they getting along in their careers? Can they serve as a bridge providing the relevant legal consultations to potential investors from the UAE who will be looking at opportunities in Syria once reconstruction gets underway on a large scale?
There are a lot of Syrian lawyers in Dubai and the UAE. The number has gone up significantly since 2011 and I am seeing more and more successful Syrian lawyers in the UAE. You see them in multinational corporations and in local family groups, both in in-house roles or in private practice. In my team, 75% of the lawyers are Syrians.
They can certainly be a bridge, especially if they have practiced in Syria for some time. If they have the necessary Syrian experience, they can very easily advise foreign investors who wish to go into Syria.