International Journal of Arab Arbiration

Volume 2 - No. (1) 2010

 
Table of Contents
Introductory note

ARTICLES

  • Substantive and Formal Conditions of the Arbitration Award Pursuant to the Libyan Law of Commercial and Civil Procedure – by Mohamed Ibrahim Al Werfalli
  • Action for Annulment Against Arbitral Awards Before the Lebanese Court of Cassation – by Roger Assi
  • The Role of the Omani Judiciary in Supporting Arbitration – by Moussa Ben Salem Alezri
  • Commercial Arbitration in the Gulf States: An Overview – by Nasser Al Zayed
  • The New Arbitration Bill in Iraq: A Few Guidance Principles of the Forthcoming Rules – by Fawzi Sami
  • The Draft Arbitration Law of the United Arab Emirates – by Abdel Hamid El Ahdab

ARBITRATION-RELATED DECISIONS ISSUED BY STATE COURTS

Bahraini Case Law

  • No.1- Court of Cassation, n° 78/2003, February 16, 2004 – Dispute Over the Annulment of a Contract Including an Arbitration Clause – Appointment of the Arbitrator According to the Arbitration Clause – Action Before the Court of First Instance – Action Rejected – Appointment of an Arbitrator – Arbitration Award Rendered – Appeal – Clause Referring to Arbitration Disputes Related to the Enforcement and Not the Annulment of the Contract – Decision i n Appeal Annulling the Arbitral Award and Referring the Case Back to the Court of First Instance – Cassation – Action for Cassation Rejected – Award Annulled
  • No.2- Court of Cassation, n° 433/2003, November 17, 2003 – Award Rendered After the End of the Arbitration Time Limit Agreed upon by the Parties – Action for Annulment Filed Before the Court of Appeal – Action Rejected – Cassation – Article 243/1 of the Code of Procedure Related to the Grounds of Annulment – Ground of Annulment Falling Within the Scope of Article 243/1 – Award Annulled (Yes)

Egyptian Case Law

  • No.1- Cairo Court of Appeals, 7th Commercial Circuit, n°112/124, May 5, 2009 – Action for Annulment of an Arbitral Award – Grounds for Annulment – Parties' Representatives Required Being Lawyers (No) – Award Motivated (Yes) – Award Settled Issues Within the Scope of the Arbitration Agreement (Yes) – Due Process Respected (Yes) – Action for Annulment Rejected. Commentary by Mahmoud Samir Al Sherkawi
  • No.2- Cairo Court of Appeals, 7th Commercial Circuit, n°29/125, May 5, 2009 – Action for Enforcement of an Arbitral Award – Objection to the Enforcement – Objector Not Granted a Visa for the USA to Attend the Arbitral Hearing – Hearing Conducted in the Absence of the Claimant – Violation by the Arbitral Tribunal of the Right of Due Process (No) – Objection Rejected – Arbitral Award Enforced. Commentary by Aktham Amine El Kholy
  • No.3- Cairo Court of Appeals, 7th Commercial Circuit, n°114/124, December 2, 2008 – Content of the Arbitral Award – Article 43 of the Egyptian Arbitration Law – Names and Nationalities of the Parties Not Included in the Award – Award Annulled (Yes)

Jordanian Case Law

  • No.1- Amman Court of Appeals, n°5/2009, July 21, 2009 – FIDIC Contract – Arbitration Clause – Request for Arbitration Filed Without Following the Proceedings Set Forth in the Contracting Contract Booklet– Request Rejected. Commentary by Georges Hazboun
  • No.2- Amman Court of Appeals, n°206/2008, June 10, 2008 – Action for Annulment Against an Arbitral Award – Reasons for Annulment Exclusively Laid Down in Article 49 of the Arbitration Law – An Action for Annulment Differs from an Appeal Against an Arbitral Award – The Annulment Judge is Prevented From Reviewing the Merits – Exception – Violation of Public Policy – Parties to Arbitration Allowed to be Represented by non-Lawyers – Public Policy Not Violated – Action Rejected. Commentary by Zaher Jordaneh
  • No.3- Jordanian Civil Court of Cassation, n°2328/2009, September 16, 2009 – Arbitral Proceedings – Request Filed Before the Court of Appeals to Suspend the Proceedings – Request Rejected – Action for Cassation – Article 191/1/2 of the Code of Civil Procedure – The Claim Value Does Not Exceed Ten Thousand Dinars – Rejection of the Request on Procedural Grounds

Kuwaiti Case Law

  • No.1- Judicial Arbitral Tribunal, n°8/99, May 15, 2000 – Dispute Over the Enforcement of a Contract – Arbitration Clause – Request for Arbitration Filed Before a Judicial Arbitration Committee – Absence of an Agreement to Refer the Dispute to Judicial Arbitration – Arbitration Clause Revealing an Agreement on Arbitration Not Before the Judiciary – Absence of Jurisdiction of the Judicial Arbitration Committee – Request for Arbitration Rejected (Yes)
  • No.2- Judicial Arbitral Tribunal, n°13/99, February 14, 2000 – Dispute Over the Bidding Conditions in an Administrative Contract – Request for Arbitration Submitted to the Judicial Arbitration Committee – Absence of an Agreement to Arbitrate – Request Rejected

Lebanese Case Law

  • No.1- Court of Cassation, 5th Chamber, n°147/2007, November 13, 2007 – Institutional Arbitration – Claim for Challenge of an Arbitrator Filed Before the Court of First Instance– Jurisdiction of the Court to Review the Claim (No) – Refusal to Sign the Request for Arbitration – Requirement not Laid Down According to the Arbitral Center's Rules – Arbitral Award Valid (Yes). Commentary by Michel Soumrani
  • No.2- Beirut Court of First Instance, 1st Chamber, n°23/80, October 1, 2009 – Request to Extend the Arbitration Time Limit – Article 773/2 of the Code of Civil Procedure – Request Submitted to the Beirut Court of First Instance Before the Elapse of the Original Time Limit – Extension Granted. Commentary by Fady Namour
  • No.3- Mount Lebanon Court of First Instance, 3rd Chamber, n°60/2007, June 19, 2007 – Two Agreements Concluded Between the Same Parties – Arbitration Clause Stipulated in the First Agreement – Dispute Arising from the Second Agreement – Case Filed Before the Court of First Instance – Parties Referring in the Second Agreement to the Provisions of the First One – Extension of the Arbitration Clause to the Second Agreement (Yes) – Lack of Jurisdiction of the Court of First Instance. Commentary by Salah El Dine Al-Dabagh
  • No.4- Beirut Court of First Instance, 1st Chamber, n°21/72, August 24, 2009, Salah Aziz v. Yahya Shamas – Claim for Challenge of an Arbitrator – Grounds for Challenging the Arbitrator Laid Down in Article 770 of the Code of Civil Procedures – Claim Submitted Within 15 Days After Having Become Aware of Those Grounds – Claim Submitted Outside the Time Limit – Claim Rejected. Commentary by Waλl Tabbara

Libyan Case Law

  • Supreme Court of Tripoli, n°713/51J, May 9, 2007 – Action for Annulment Against the Arbitral Award – Arbitration Clause Including a Waiver of the Right to Annulment – Action Rejected.

Moroccan Case Law

  • No.1- Supreme Court, Commercial Chamber, 1st division, n°362, March 26, 2008 – Leave for Enforcement of the Arbitral Award Granted by the President of the Commercial Court – Decision of Enforcement Annulled by the Court of Appeal – Action for Cassation Against the Decision Rendered in Appeal – Action for Appeal Allowed Only Against Decisions Refusing the Enforcement of the Award– Decision in Appeal Annulled – Enforcement of the Award Confirmed (Yes). Commentary by Abdullah Darmish
  • No.2- Higher Council, Commercial Chamber, 1st division, n°1294, September 9, 2009 – Contract Dispute Resort to Judicial Courts Despite the Existence of an Arbitration Clause– Challenge of the Arbitral Jurisdiction Raised for the First Time Before the Court of Appeal – Challenge Related to Procedural Issues Must be Raised Before the Court of First Instance – Recourse to Arbitration is Deemed as Waived – Appeal Rejected

Omani Case Law

  • Court of Appeal, October 19, 1998, n°2/98 – Action for Annulment Against an Arbitral Award – Action Submitted Within the Legal Time-limit (Yes) – Award Violating the Applicable Law Agreed Upon by the Parties – Arbitral Award Annulled (Yes)

Saudi Arabian Case Law

  • Court of Grievance, Commercial Circuit, n° 1767/2/J, February 21, 2004 – Employment Contract Containing an Arbitration Clause Applying Shari'a – Dispute Arising From the Contract – Award Rendered – Objection Submitted Against the Award to the Court of Grievance – Objection Rejected – Leave for Enforcement Granted Pursuant to Article 20 of the Arbitration Law

Sudanese Case Law

  • No.1- National Supreme Court, Civil Circuit, n°1237/2007, October 21, 2007 – Shares Sale contract – Arbitration Clause Included in the Contract – Dispute Over the Payment of the Shares Referred to the Khartoum Court of First Instance – Dispute Settled by the Khartoum Court of First Instance Despite the Arbitration Clause – Decision Annulled by the Court of Appeal Due to the Existence of an Arbitration Clause – Decision Confirmed by the Supreme Court – Dispute Referred to Arbitration (Yes)
  • No.2- Supreme Court, Civil Circuit, n°1903/2006, February 27, 2007 – Partnership Agreement Containing an Arbitration Clause – Arbitration Dispute – Respondent Refusing to Appoint an Arbitrator – Claim to Appoint an Arbitrator Filed Before the Commercial Court of Khartoum – Claim Rejected Due to the Absence of a Partnership Agreement – Decision Annulled by the Court of Appeal – Annulment Confirmed by the Supreme Court– Autonomy of the Arbitration Clause – Dispute Referred to Arbitration (Yes)

Syrian Case Law

  • No.1- Damascus Court of Appeal, n°288, April 29, 2009 – By Laws of a Company Referring Disputes to Arbitration – Arbitral Award Rendered – Request for Exequatur Rejected – Refusal to Grant Leave for Enforcement is not in Itself a Waiver of Arbitration – Parties Entitled to Refer the Dispute Again to Arbitration Even if the Previous Arbitration Has Failed – New Arbitrators Appointed by the Competent Court and Dispute Referred Again to Arbitration. Commentary by Ahmad Haddad
  • No.2- Damascus Court of Appeal, n°581, August 26, 2009 – Claim for Challenge of an Arbitrator – Conditions For Submitting the Claim – Person Subject to Challenge Should Have the Capacity of an Arbitrator – Arbitrator Not Legally Appointed By the Parties Nor by the Competent Court – Claim Rejected. Commentary by Ahmad Haddad

Tunisian Case Law

  • Tunisian Court of Appeals, n°134, December 3, 2002 – Arbitration Period for Settling the Dispute – Extension of the Period Agreed by the Parties – Article 24 of the Arbitration Law – Extended Period May Not Exceed One Month – Award Rendered After the Time Limit – Award Annulled (Yes)

UAE Case Law

  • No.1- Court of Cassation, Dubai, Commercial Chamber, n°268/2007, February 19, 2008 – Dispute Over the Profits Referred to Arbitration – Arbitration Award Settling the Partnership Agreement Between the Parties Rather than the Dispute Over the Profits – Limits of the Arbitrators' Mission – Limits Respected (Yes) – Time Period of Arbitration – Attendance of the Parties in Dispute of the Hearings Held After the Expiration of the Time Period – Implicit Extension Thereof (Yes) – Right of Due Process – Violation (No) – Action for Annulment Rejected. Commentary by Ibrahim Al-Mulla
  • No.2- Court of Cassation, Dubai, Commercial Chamber, n°219/2008, March 9, 2009 – Arbitration Clause – Dispute Referred to the Court of First Instance – Competence of the Court – Respondent Raising Claims Regarding the Existence of an Arbitration Clause – Issue Raised at the First Hearing – Dispute Referred to Arbitration
  • No.3- Court of Cassation, Dubai, Commercial Chamber, n°128/2008, June 15, 2008 – Decision of the Court of First Instance Rejecting a Challenge Against the Arbitrator – Right to Appeal Such Decision (Yes) – Absence of a Provision in the Code of Civil Procedure Preventing Such Appeal – Article 185 of the Code of Civil Procedure – The Prohibition of Appealing the Decisions Concerning the Challenge of an Expert is Not Applicable to the Arbitrator – Request Referred Back to the Court of Appeal for Review
  • No.4- Court of Cassation, Dubai, n°263/2007, February 3, 2008– Res Judicata Effect of the Award – Both Parties to Arbitration Filing an Action for Annulment Against the Award – Waiver of the Award – Dispute Settled Anew by State Courts

Yemeni Case Law

  • No.1- Supreme Court, Commercial circuit, n°31176, January 21, 2009 – Arbitral Award Enforced Voluntarily – Action for Annulment Against an Arbitral Award – Conditions for Filing the Annulment Action – Article 273 of the Code of Civil Procedure – Action Prohibited vis-a-vis the Party Who Voluntarily Enforced the Award – Action Rejected. Commentary by Shaher Moujahed Al Salihi
  • No.2- Supreme Court, Commercial circuit, n°33323, September 3, 2009 – Condition for Filing an Action of Annulment Against the Arbitral Award – Respecting the Legal Time-Limit – Exception to Such Condition – Force Majeure – Action Accepted After the Expiration of the Time Limit (Yes)

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

I- Awards from the International Court of Arbitration (ICC).

  • June 4, 2006 – Agency Contract Concluded in the Framework of a Tender Process – Termination of the Contract by the Principal during the Bidding – Dispute Referred to Arbitration – Article 735(1) of Civil and Commercial Law of Qatar – Valid Termination (Yes) – Discretion of the Arbitrator When Assessing the Damages Resulting from the Termination – Compensation for the Loss of Profit Granted to the Claimant. Commentary by Samiha Al Kalyoubi.

II- Awards from the Cairo Regional Centre for International Commercial Arbitration (CRCICA)

  • June 7, 2001, n°212/2001 – Domestic Arbitration – Extension of the Personal Reach of an Arbitration Clause to a Third Party– Conditions of Such Extension – Unification of the Economic Management Between the Parent Company and the Subsidiary Company (Yes) – Fraud Claim Regarding a Deed Submitted in the Arbitral Proceedings Filed Before the Criminal Court – Request to Suspend the Arbitral Proceeding– Criminal Proceeding Prevails Over Civil Proceeding – Deed Subject of the Fraud Claim Unimportant to the Arbitration – Suspension Request Rejected – Arbitral Award Rendered. Commentary by Fadi Nammour

ARBITRATION NEWS

TEXTS/LAWS/REPORTS/DOCUMENTS

  • The Final Version of the Federal Draft Law of 2009 of the United Arab Emirates on Arbitration
 
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