International Journal of Arab Arbitration

Volume 11 - No. (2) 2019

Table of Contents


ARTICLES 

- The Invocation of State Defenses in Times of Conflict: Force Majeure, Necessity and the Libyan Example – by Leonardo Carpentieri

- Arbitration in the Abu Dhabi Global Market (ADGM) – by Hassan Saeed Abaragh

- The Egyptian State Council and the Enforceability of Arbitration Agreements Concluded Within the Ambit of Administrative Contracts: a Case Study – by Muhammad Ussama 


ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS


Egyptian Case Law

No. 1 – Cairo Court of Cassation – Civil and Commercial Circuit – Challenge No. 8777/87 – 7 March 2018 –– Domestic Arbitration – Challenge of the Cairo Court of Appeal’s Judgment – Refusal to Stop the Enforcement of an Arbitral Award Issued under the auspices of the Cairo Regional Centre for International Commercial Arbitration (CRCICA) – Lack of Jurisdiction of the President of the Seventh Circuit of the Cairo Court of Appeal to Rule on Enforcement Issues – Jurisdiction of the Court of First Instance for Enforcement of Domestic Awards – Principle of Public Policy – Challenge Accepted – Annulment of the President of the Seventh Circuit of the Cairo Court of Appeal’s Enforcement Judgment



Jordanian Case Law

No. 1 – Jordanian Court of Cassation – Case No. 4361/2018 – 26 July 2018 –– Challenge of the Amman Court of Appeal’s Judgment – Judgment Annulling Arbitral Award – Arbitral Award Imposing on the Consortium Company to Pay a Sum of Money on the Basis of a Contract – Contract Unsigned by the Company Party to Arbitration – The Company Has Independent Legal Personality and Income Compared to That of the Signatories of the Contract – Company Should not be Party to Arbitration – Reversal of the Court of Appeal’s Judgment

 

Kuwaiti Case Law

No. 1 – Kuwait Court of Cassation – Fourth Commercial Circuit – Challenge No. 2195 of the Commercial Year 2018 – 28 March 2019 –– International Arbitration – Challenge of the Kuwaiti Court of Appeal’s Judgment – Court of Appeal’s Judgment Refusing to Enforce a Foreign Arbitral Award – Contention that the Award Conflicts with Another Domestic Arbitral Award – The Petitioner Not a Party to the Domestic Arbitral Award – Res Judicata Principle Limited to The Same Parties – Kuwait Party to the New-York Convention – Imposing Enforcement of Foreign Arbitral Awards – Annulment of the Court of Appeal’s Judgment



Lebanese Case Law

No. 1 – Beirut Civil Court of Appeal – Fourteenth Chamber of Arbitration – Case No. 19/2015 – 10 May 2018 –– Request for Annulment of Arbitral Award – Arbitral Award Issued Against Guarantor, Guaranteeing the Signatory of the Contract Subject Matter of the Dispute – Award Imposing on the Guarantor to Pay an Amount of Money – Obligation Based on a Loan Contract Not Signed by the Guarantor – Court of Appeal Considers Guarantee Contract Independent from the Original Contract Containing the Arbitration Agreement – Arbitral Award Issued Against the Guarantor Without an Underlying Arbitration Agreement – Annulment of the Arbitral Award

No. 2 – President of the Court of First Instance of Mount Lebanon – First Chamber – Case No. 33/2017 – 11 October 2017 –– Request to Appoint an Arbitrator – Appointment of an Arbitrator by Claimant Refused by Respondent – Arbitrator Previously Appointed by Claimant in Another Arbitration – Claimant Has the Right to Choose Said Arbitrator – Appointment of Arbitrator by Claimant Accepted by Court of First Instance


Moroccan Case Law

No. 1 – Commercial Court of Appeal of Casablanca, Decision No. 1528, Dated 26 March 2018 — Arbitral Award - Annulment - Allegation of Lack of Reasoning - Recourse to Revision - The Arbitration Provisions Are Present in the Moroccan Code of Civil Procedure - The Law Enables Recourse to Revision as a General Provision - Clear Discrepancies Between Parts of a Judgment Constitute Grounds for Revision - A Defect in Reasoning Is a Legal Basis for Appeal and not for Revision - The Claimant Based its Request for Revision on Defective Reasoning - Request for Revision Is Accepted, but Does not Have Legal Grounds and, as Such, it Must Be Denied

Omani Case Law

No. 1– Muscat Court of Appeal – Commercial Circuit – Appeal No. 505/7122/2018 – 18 November 2018 –– Request for Annulment of Arbitral Award – Request Based on the Fact That the Award Has Relied on a Legal Text Inapplicable to the Dispute – Violation of the Principle of Non-Retroactivity of Laws – Arbitral Award Based on an Expert Report Prepared by Respondent – No Ground for Annulment – The Law Exclusively Provides for the Conditions in Which the Application for Annulment is Admissible – The Appellant Relied on Grounds that Do Not Fall Under Said Conditions – Rejection of the Request for Annulment


Qatari case law

No. 1– Qatar Court of First Instance – Case No. 3584/2016 – 28 February 2017 –– Request for Payment Due Under Contract – Action Filed Before the Qatari Court of First Instance – Violation of the Contract Between the Parties by the Respondent Alleged by Claimant – Contract Containing Arbitration Clause – Respondent's Contention That the Claim is Inadmissible Due to the Existence of an Arbitration Clause – Case Dismissed by the Qatari Court of First Instance

No. 2– Qatar Court of First Instance – Fourth Circuit – Case No. 144/2018 – 22 May 2018 –– Action Filed Before the Qatar Court of First Instance – Alleged Violation by Respondent of Sub-Contract for Works Between the Parties – Main Contract Including an Arbitration Clause – Provision Considering All the Main Contract’s Clauses an Integral Part of the Sub-Contract Except for the Provisions Pertaining to the Price – Respondent's Contention that the Arbitration Clause Extends to the Sub-Contract – Action Declared Inadmissible Due to the Existence of Arbitration Clause – Case Dismissed

Syrian Case Law

No. 1– Syrian First Civil Court of Appeal – 8 May 2018 –– Request to Annul an Arbitral Award and Stop Its Enforcement – Dispute Concerning Nomination of Five Arbitrators Despite the Contract Providing for the Nomination of Three Arbitrators – Number of Arbitrators Must Be an Odd Number – Nomination of Five Arbitrators Instead of Three is Not a Ground for Annulment of the Arbitral Award – Rejection of the Appeal – Arbitral Award Considered Enforceable

Tunisian Case Law

No. 1– Tunisian Court of Cassation (Combined Chambers) – Case No. 20918/2015 – 28 June 2018 –– Challenge of the Tunis Court of Appeal’s Judgment – Appeal Judgment Annulling Arbitral Award for Violation of the Confidentiality of the Deliberations – Arbitral Award Containing the Dissenting Opinion of the Arbitrator – Confidentiality of the Deliberations is Applicable During the Arbitral Proceedings but Not After the Arbitral Award Is Published – No Violation of the Principle of Confidentiality of the Deliberations – Annulment of the Court of Appeal’s Judgment 129

UAE Case Law

No. 1– Dubai Court – Appeal No. 210 of the Year 2016 – 21 December 2016 –– Arbitration Proceedings Before the Dubai International Arbitration Centre – Dispute Based on a Contract of Sale and Purchase of a Unit – Waiver by the Parties of Their Right to Resort to Arbitration – Claim Brought Before the Dubai Court of First Instance – Refusal by the Court of First Instance to Rule on the Merits of the Dispute Because of the Presence of an Arbitration Clause in the Disputed Contract – Appeal of the Court of First Instances’ Judgment – Arbitration Clause Considered Waived by the Parties Who Requested to Close the Arbitration File – Arbitration Cannot Be Repeated for the Same Dispute Already Litigated in Court Between the Same Parties – Annulment of the Court of First Instances’ Judgment and Remittal of the Dispute to the Court of First Instance to Rule on the Merits of the Dispute


STATE-COURT DECISIONS RENDERED BY NON-ARAB JURISDICTIONS

No. 1– Minister of Finance (Inc) and 1MDB v IPIC and Aabar – High Court of Justice – The Business and Property Courts of England & Wales – Commercial Court – 8 May 2019 –– Arbitration Arising out of a Term Sheet Agreed Between the Parties – Defendants Incorporated in the Emirate of Abu Dhabi – Consent Award Issued After Parties Settled Arbitration – Terms Set Out in a Settlement Deed and a Supplemental Deed Both Containing Arbitration Agreements – Challenge of The Consent Award – Allegation that the Tribunal Did Not Have Substantive Jurisdiction and that the Award Was Procured by Fraud or Contrary to Public Policy – Allegation of Misappropriation and Conspiracy – Conspiracy Was Allegedly Furthered Through the Agreement of the Term Sheet, the Settlement Deeds and the Consent Award – Contention That the Choice of Arbitration Was Part of the Attempts to Conceal and Prevent Investigation of this Conspiracy – Respondent Initiating Two Further Arbitrations Under the Settlement Deed and Supplemental Deed – Respondents' Application to Stay Claimant’s Challenge Pending the Outcome of the New Arbitrations on the Basis of Section 9 of the Arbitration Act 1996 Providing for Automatic Stay as of Right – Judge Ruled That no Stay Could be Ordered Under Section 9 of the Arbitration Act 1996 – Judge Ruled a Temporary Case Management Stay of the Challenge Proceedings to Allow the Second Arbitrations to Proceed First – Commentary by Craig Tevendale, Stuart Paterson and Steven Chua

 

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRAL INSTITUTIONS

No. 1–Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan – ICSID Case No. ARB/12/1 – 12 July 2019 – International Investment Arbitration – International Bilateral Treaty Between Australia and Pakistan – Rights Under a Joint Venture Agreement Concluded with the Province of Balochistan for the Development of a Copper-Gold Mine – Claim Arising Out of the Decision by the Pakistani Province of Balochistan to Refuse the Application by Claimant’s Local Operating Subsidiary for a Mining Lease in Respect of a Gold and Copper Site – Pakistan Supreme Court Judgment's Ruling the 1993 Agreement Between Claimant and the Federal Government as Against the Interest of Pakistan and Set it Aside – Allegation Raised by Respondent Before Supreme Court That the Contract Was Tainted with Corruption and Thus Void – Supreme Court of Pakistan Held That the Mining Company Had No Rights Under the Lease Agreement – Award on Liability Held that Pakistan Breached the Australia-Pakistan BIT by Not Applying the Agreement – Arbitral Tribunal Decided that Pakistan Failed to Submit Solid and Persuasive Evidence of Corruption in the Making or Performance of the Investment – Award on Quantum Ordered Pakistan to Pay an Amount of 6 Billion USD – Commentary by Rana Sajjad Ahmad


ARBITRATION NEWS

I. New and Recent Arbitration Cases

II. Conferences, Seminars and Trainings

III. Miscellaneous News about Lawyers, Law Firms and Other Institutions


TEXTS/LAWS/REPORTS/DOCUMENTS

– ANNEX 1 TO LEONARDO CARPENTIERI'S ARTICLE ON "THE INVOCATION OF STATE DEFENCES IN TIMES OF CONFLICT: FORCE MAJEURE, NECESSITY AND THE LIBYAN EXAMPLE”: LIST OF INTERNATIONAL ARBITRATION CASES INVOLVING THE STATE OF LIBYA AND LIBYAN STATE-RELATE ENTITIES SINCE 2011

 
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