International Journal of Arab Arbitration

Volume 12 - No. (1) 2020

Table of Contents


ARTICLES

- Conduit Jurisdiction and Public Policy: Comparison of and Interplay between DIFC and ADGM Courts in the United Arab Emirates - by Lucas Pitts, Yannick Hefti-Rossier and Kimia Kalantarian

- Mediation: a Culturally Well-Established Dispute Resolution Mechanism in the MENA (Middle East and North Africa) Region Gaining in Momentum – by David Lutran and Joséphine Hage Chahine


ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS


Bahraini Case Law

No. 1 – Court of Cassation – Challenge No. 797/2017 – 19 March 2018 –– Application for Annulment of Arbitral Award – Award Rendered Under the Auspices of the GCC Commercial Arbitration Centre – Contested Ruling Purportedly Erred as It Upheld the First Instance Judgment and the Jurisdiction of the Bahraini Courts – Contested Ruling Also Examined the Merits in Violation of Articles 14, 15 and 16 of the Charter of the GCC Commercial Arbitration Centre – Competent Judicial Authority Is In the State Where Enforcement is Sought – Contested Ruling Reversed


Egyptian Case Law

No. 1 – Court of Cassation – Civil and Commercial Circuit – Challenge No. 4734 of 84J – 2 July 2018 ––  Application for Annulment of Arbitral Award – Award Rendered Under the Auspices of the ICC – Award Signed by the President of the Tribunal Only – Contested Ruling Set Aside the Award on the Basis that It Was Not Signed by the Arbitrator Appointed by the Appellant – Parties Agreed to Apply ICC Arbitration Rules to the Exclusion of Provisions of Egyptian Arbitration Law Number 27 of 1994, As Per Article 25 of Said Law –  Article 31 of ICC Rules Does Not Require Signature of the Original Copy of the Award By All Members of the Tribunal – Purpose of the Procedure Was Achieved When the Majority Signed the Draft Award – Contested Ruling Reversed

No. 2 – Administrative Court – Case No. 27255 of 73J – 23 March 2019 ––  Request to Annul the Decision Issued by the Cairo Regional Centre for International Commercial Arbitration (CRCICA) Rejecting Application to Terminate the Arbitration Proceedings – Both Parties Wish to Terminate the Arbitration Proceedings – Expiration of the Time Limit for Rendering the Arbitral Award Without Issuance of Final Award or Extension of the Time Limit – Elements of Seriousness and Urgency Are Met – Stay of Enforcement and Annulment of the Contested Decision

No. 3 – Court of Cassation – Commercial and Civil Circuit – Appeal Number 282 of Year 89J – 9 January 2020 –– Application for Enforcement of Arbitral Award – Challenge of Order Granting Leave for Enforcement of the Arbitral Award – Procedure for the Recognition and Enforcement of Arbitral Awards Shall Be in Accordance with the Rules of Procedure Followed in the Territory Where Enforcement Is Sought As Per Article 3 of the New York Convention – Judge Who Rejected Application to Obtain Leave for Enforcement Did Not Exhaust His Authority to Hear Appeal – Interest Rate Applied in the Arbitral Award Violates Public Policy As Per Article 5 of the New York Convention Because It Exceeded the Interest Rate of 5% to be Applied in in Commercial Matters As Per Articles 226 and 227 of the Egyptian Civil Code – Contested Ruling Partially Reversed, Leading to Partial Enforcement of Arbitral Award – Interest Awarded in Arbitral Award Limited to 5% Per Annum


Jordanian Case Law

No. 1 – Court of Cassation – Case No. 305/2018 – 30 January 2018 –– Appeal Against An Appellate Decision Setting Aside An Award Because It Lacked Substantiation and Disregarded Evidence – Difference between Challenge for Annulment of Arbitral Award and Appeal – Judge Ruling on a Challenge for Annulment May Not Re-examine the Merits of the Dispute – Court of Appeal Did Not Clearly State the Ground for Annulment As Per Article 49 of the Jordanian Arbitration Law – Contested Ruling Vacated and Remitted to the Court of Appeal for Further Consideration

No. 2 – Civil Court of Cassation – Case No. 4361/2018 – 26 July 2018 ––  Application for Annulment of Arbitral Award – Court of Appeal Annulled the Arbitral Award – Arbitral Award Was Rendered Against Non-signatory of Contract Containing the Arbitration Clause – Consortium that Concluded the Contract Has Its Own Legal Personality Separate from the Non-signatory – Court of Appeal Erred in Failing to Examine the Matter of Replacing the Parties Wrongly Named with the Rightful Parties – Court of Appeal Also Erred in Examining Validity of Notification Based on Article 10(5) of the Code of Civil Procedure Rather Than Article 6 of the Jordan Arbitration Act – Decision Reversed and Remitted to the Appellate Court to Take the Necessary Legal Procedures


Lebanese Case Law

No. 1 – Beirut Civil Court of Appeal – Fourteenth Chamber Examining Arbitration Cases – Ruling No. 19/2015 – 10 May 2018 –– Application for Annulment of Arbitral Award – Lower Court Granted Leave for Enforcement of Arbitral Award – Extension of the Arbitration Clause to Third Parties – Suretyship as an Accessory Contract to the Principal Contract – Arbitral Award Was Issued Against the Surety Who Was Not Bound by the Arbitration Clause – Arbitration Clause Contained in the Principal Loan Contract Cannot Be Transferred or Extended to the Surety –Arbitral Award Annulled and Lower Court Decision Reversed

No. 2 – Court of Appeal of Beirut – Fourth Chamber Examining Arbitration-Related Matters – Decision No. 1102/2019 – 5 September 2019 –– Appeal Against the Decision of the Court of First Instance Granting Exequatur to Arbitral Award Rendered in Qatar – Decision Granting Exequatur May Be Challenged on the Grounds Exclusively Set Out Under Article 817 of the Lebanese Code of Civil Procedure – A Party to the Arbitration Has Capacity to Request Exequatur in Lebanon, Regardless of Whether the Losing Party Owns Assets in Lebanon Which Can be Subject to Enforcement – Plea Concerning Absence of Capacity and Interest is Rejected – All Other Grounds, Including Violation of Due Process and Right of Defence, Are Rejected – Appeal is Rejected


Omani Case Law

No. 1 – Court of Appeal of Muscat – Commercial District – Appeal No. 91/7103/2018 – 18 March 2018 –– Application for Annulment of Arbitral Award –Grounds for Annulment Are Explicitly Provided for in Articles 52 and 53 of the Omani Arbitration Law – Parties Agreed to Start Arbitration Proceedings Based on Arbitration Agreement Signed Before the Arbitral Tribunal – Parties Barred from Invoking Previous Time Limit Stated in Clauses 4 and 12 of the Arbitration Agreement – Tribunal Has the Power to Rule on its Own Jurisdiction – Failure to Raise a Plea on Validity of Arbitration Clause Before Tribunal Constitutes Implicit Waiver – Application for Annulment Rejected


Qatari Case Law

No. 1– Court of Appeal – Civil and Commercial Appeal – Ruling No. 22/2019 – 17 June 2019 –– Application for Annulment of Arbitral Award – Award Rendered Under the Auspices of the Qatar International Centre for Conciliation and Arbitration (QICCA) – Challenge  Based on Lack of Notification of the Proceedings and Award, Improper Constitution of the Tribunal, Failure to Resort to Procedure Provided for in Arbitration Clause Prior to Arbitration and Defects in the Award – Lack of Participation of Appellants in the Arbitration Proceedings, Despite Proper Notification, Does Not Prevent Proceedings from Continuing – Arbitration Clause Does Not State Procedure to be Followed Prior to Arbitration – Ground for Annulment is Therefore Unfounded – Grounds for Annulment Are Provided for in Article 33 of the Qatar Arbitration Law No. 2 of 2017 – Challenge of the Arbitral Award on the Merits by Appeal is Not Permissible – Appeal is Rejected


Tunisian Case Law

No. 1 – Court of First Instance of Tunis – Case No. 99138/2019 – 12 March 2019 –– Request to Withdraw an Order on Petition Issued by the President of the Court of First Instance of Tunis on the Appointment of an Arbitrator – Request to Withdraw Based Primarily on Lack of Jurisdiction to Issue the Order and Inarbitrability of the Dispute As Court Had Already Issued Commercial Judgment Number 46893 Rendered on 28 June 2016 – Parties Are Free to Agree on the Procedure for Constitution of the Arbitral Tribunal Pursuant to Article 56(2) of the Tunisian Arbitration Law – Possibility of Resorting to the First President of the Court of Appeal Only When the Parties Fail to Agree on the Procedure – Request and Judgment Did Not Concern the Same Subject Matter, though Both Involved the Same Agreement – Agreement Concluded Between the Parties Is Still Effective – There Is No Objection To the Validity of the Arbitration Clause Contained in Agreement – Request to Withdraw Order on Petition Rejected


UAE Case Law

No. 1 – Abu Dhabi Court of First Instance, Case No. 932/2016 – Commercial – 22 September 2016 –– Application for Annulment of the Arbitral Award Based on Violation of Public Policy With Respect to Rules Pertaining to Individual Property and the Circulation of Wealth – Award Rendered Under the Auspices of the Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) – Subject Matter Does Not Relate to a Public Interest, but to the Private Interests of the Parties – Arbitral Award Does Not Violate Public Policy – Award Satisfies Requirements Under Article 215 of the UAE Code of Civil Procedure – Application for Annulment Rejected and the Arbitral Award Approved

No. 2 – Dubai Court of Cassation – Challenge No. 285/2019 – Civil – 25 July 2019 –– Challenge of Contested Appeal Ruling Confirming the Decision of the Court of First Instance – Two-Part Contract Concluded Between Employer and Employee Relating to Employment Relationship and Acquisition of Company Shares – Court of First Instance Annulled Both the Arbitration Clause Included in Contract and the Arbitral Award on Jurisdiction Rendered by the Arbitrator – Purported Violation of Public Policy – Disputes Relating to the Rights of Employees Are Governed by UAE Labour Law and Cannot Be Subject to Arbitration As Per Article 203(4) of the UAE Code of Civil Procedure – Option To Acquire Shares Is Considered Among the Rights Resulting From the Employment Relationship – Claim Falls Under the Jurisdiction of State Courts, According to a Specific Procedure Under Article 6 et seq. of the Labour Law – Challenge Rejected and Appeal Ruling Confirmed


STATE-COURT DECISIONS RENDERED BY NON-ARAB JURISDICTIONS

No. 1– Abdul Latif Jameel Transp. Co. v. FedEx Corp., No. 19-5315, 2019 U.S. App. LEXIS 28348 (6th Cir. Sept. 19, 2019) – Commentary by John Fellas

 

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRAL INSTITUTIONS

No. 1– Mohamed Abdel Raouf Bahgat v. Arab Republic of Egypt, PCA Case No. 2012-07, 23 December 2019 – Commentary by Hossam Gamaleldin


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