International Journal of Arab Arbiration

Volume 1 - No. (3) 2009

 
Table of Contents

Introductory note

DOCTRINE

  • The New Syrian Arbitration Act - by Ahmed Haddad
  • Commentary on the new commercial arbitration rules in Syria- by Louis Cashisho
  • Can the arbitration rules within the Arab Maghreb Union be unified? - by Mustapha Trari-Tani
  • Enforcement of foreign arbitral awards in Libya in a nutshell - by Mohamed Werfalli
  • Combining the means of settling conflicts arising from construction contracts – by Ahmed Sharafeddine
  • Lights on the Tunisian case law and the application of public policy in arbitration – by Ahmad Ouerfelli
  • Commentary on the decision by the Egyptian Minister of Justice's decision to amend the proceeding for filing arbitral awards - by Nader Ibrahim

ARBITRATION RELATED DECISIONS FROM STATE COURTS IN ARAB COUNTRIES

Algerian Case Law

  • No.1 - Disputes between a state agency and a private party - State agency having activity in the commercial and industrial sector - Strategic public facilities - Recourse to arbitration by the government prior to resorting to States courts - Concept of Arbitration - Commentary by Mustapha Trari-Tani

Bahraini Case Law

  • No.1 - The arbitration agreement has limited the arbitral jurisdiction to the "amounts that should be paid”, therefore state courts have jurisdictions to examine issues related to liability
  • No.2 - The decision on the validity of the arbitration clause can be subject to appeal

Egyptian Case Law

  • No.1 - Request for annulment of an arbitral award - Waiver of a defense – Party stopped from raising it - Due process - Truncated Tribunal - Valid arbitral tribunal - Signature of minutes not required – Limited Judicial Review by the annulment Court - Commentaries by Giorgio Bernini, Serge Lazareff, Michael Bόhler
  • No.2 - Arbitral awards are not required to be issued in the name of the (Egyptian) people contrary to the judgments of ordinary courts - Commentary by Ahmad El-Koshery
  • No.3 - Arbitration is limited to what the will of the parties to arbitration has defined - The agreement on arbitration following the occurrence of a dispute should specify the matters to be settled in the arbitration otherwise the agreement shall be null - Amending the requests set forth in the arbitration agreement and issuing an award with regard thereto is not considered to be an excess of the scope of the agreement as long as it remains within the limit of the matters agreed upon to be subject to arbitration - Commentary by Hosni Abdul Wahed
  • No.4 - Nullity of the arbitration clause in the contract for carriage of goods by sea by virtue of a bill of lading - Arbitration clause denying the right for the claimant to conduct the arbitration in one of the alternative places provided for in the Hamburg Convention - Nullity also due to the application of a law different from the applicable law according to the Hamburg Convention – Commentary by Nader Ibrahim
  • No.5 - An arbitral award having rejected the claims can be granted leave for enforcement
  • No.6 - Refusal to grant leave for enforcement because a ruling was previously rendered refusing the enforcement; no change in the facts and the legal status
  • No.7 - The judge of annulment does not have the right assessment by the arbitrators or the correctness or incorrectness of their findings - Limited legal grounds for annulment - Rejection of the annulment claim

U.A.E. Case Law

  • No.1 - The arbitrator must render his award within the agreed time frame as agreed upon by the parties - Extension of the original time-limit in the arbitration agreement - No further agreement on the deadline - Issuance of the award within six months after the first hearing - Cassation against the decision granting recognition (yes)
  • No.2 - Private arbitration proceedings and arbitration conducted by the Court - Settling issues that were not submitted to the arbitrator - Partial cassation
  •  No.3 - The signature by the arbitrator on the page containing the findings of the award is not sufficient for its validity

Jordanian Case Law

  • No.1 - Recourse against the arbitrators' fees is possible only after the issuance of all awards settling the dispute between the parties - Commentary by Mohammad Al-Diri
  • No.2 - The person appointed by the parties to monitor the payment is not an arbitrator settling all disputes between them
  • No.3 - Contract of carriage of goods by sea - Arbitration clause - The Arbitration Act of 2001 is applicable to the arbitration agreement within the territory of the Kingdom - Arbitration seat in London - Validity of the arbitration agreement - Adhesion by the Kingdom to the Hamburg Convention and the New York Convention - No contravention to the Constitution
  • No.4 - Decision by a state court not to hear a case due to the existence of an arbitration clause - Decision subject to recourse by way of appeal - Agreement on arbitration inside and outside the Kingdom is permissible
  • No.5 - Arbitration agreement - Necessity for the defendant to raise their defend based on the existence of the arbitration agreement prior to examining the merits of the case - Defends raised in a timely manner - Rejection of the claim

Kuwaiti Case Law

  • No.1 - Arbitral award - Content - Arbitrator duty - Defenses - No duty to deal with all the defenses - Duty to tackle only those defenses which influence the outcome of the dispute
  • No.2 - Judicial arbitration and free zone - Kuwaiti Law lifts the jurisdiction of state courts as a result of an arbitration clause

Lebanese Case Law

  • No.1 - The control over the validity or invalidity of the grounds is impermissible in the request for annulment of the arbitral award - The arbitrator is not obliged to reply to all the arguments of both parties - Submitting the expert report to discussion between the parties eliminates the vice affecting the attendance during the expertise process - Rejection of the request for annulment - Commentary by Roger Assi
  • No.2 - Judgment rejecting the request for annulment of an arbitral award – Request for revision against the judgment - Rejection of the request - Commentary by Elias Hanna
  • No.3 - Request to annul an arbitral award and to re-examine the case following a possible annulment is subject to a proportional court fee
  • No.4 - Arbitral award - Recourse by way of annulment - Dispute over the court fee to be paid - Recourse still available - Annulment of the award - Scope and effect of the annulment on the merits of the case - Merit automatically dealt with in case of annulment - Commentary by Abdo Ghossoub
  • No.5 - Arbitrator linked to one of the two parties through a power of attorney – Both parties informed thereof - Agreement to appoint the arbitrator as an equity arbitrator - Scope of the mission of the arbitrator - Mission not limited to the interpretation of the contract - Issue of the termination of the contract dealt with - Mission complied with - No legal duty for the arbitrator to notify the minutes - No scrutiny by the annulment court over the justification of the arbitral award - Rejection of the request for annulment
  • No.6 - Withdrawal of one of the arbitrators - Qualification of the arbitration – No license in law or in engineering - Shari'a qualification - Replacement of the arbitrator - Time limit of arbitration stops running until the replacement of the resigning arbitrator - Request for extension of the time limit
  • No.7 - Agreement to resort to equity arbitration - Invitation to initiate the arbitral proceedings and appoint the arbitrators - No-reply to the invitation - Arbitration clause accurate, detailed and clear - Obstacle to the constitution of the arbitral Tribunal - Appointment by the president of the First Instance Chamber of the third arbitrator
  • No.8 - Arbitration in equity - Principle of due process - Violation - No nullity unless there is a harm - Facts, not the law, are submitted to scrutiny - No scrutiny by the annulment judge of the justification of the award - Contradiction in the ground is not a cause of annulment - Waiver of the right to appeal against the award - The Court of Appeals has the ultimate right to interpret the arbitration agreement
  • No.9 - Arbitral award rendered in equity - Non-existed award - Null award – State court controls the existence of the grounds not their validity – The appropriate justification is sufficient - Res judicata is not part of the public policy - The Rejection of the annulment request - Leave for enforcement granted
  • No.10 - Request for annulment - Request is examined separately if it deals with the arbitration clause or the arbitration agreement - Arbitration clause - Signature requiring a special power of attorney - The power of attorney may be obtained later on through an explicit or implicit confirmation – The request for arbitration is admissible if filed by some persons who signed the arbitration clause - Intervention and joinder before the Court of Appeals to challenge the arbitral award is permissible

Libyan Case Law

  • No.1 - Case filed with a State Court - Case rejected due to the existence of an arbitration agreement – grounds
  • No.2 - An oral maritime contract can be proven by evidentiary means alternative to written ones - Commentary by Mohamed Werfal

Moroccan Case Law

  • No.1 - Arbitration clause - Narrow interpretation - Arbitrator drawing his jurisdiction from the contract stipulating the arbitration agreement - Violation by the arbitrator of the limits of the agreement equals violation of a public policy rule
  • No.2 - Cancellation of the arbitration clause prevents granting recognition to the resulting arbitral award

Omani Case Law

  • No.1 - Request to stay the enforcement of the arbitral award - Request without valid grounds - Request rejected - Refraining from submitting a request for the annulment of the arbitration agreement - Statements of defense submitted without objecting on the absence of the arbitration clause - Rejection of the Challenge - Request to annul the arbitral award is only accepted in cases explicitly mentioned by the law - Commentary by Abdullah El Saidi

Qatari Case Law

  • No.1 - Arbitration clause - Disputes related to the enforcement of the contract - Exact scope of the dispute may be then defined during the pleading – Request to stay the enforcement – Rejection

Sudanese Case Law

  • No.1 - Request for annulment of an arbitral award - Rejection of the request -Requirements of Article 41 of the Arbitration Act of 2005 not met – First Instance decision set aside by the Court of Appeals - Confirmation of the Court of Appeals' ruling by the Supreme Court - Application for revision of the judgment of the Supreme Court infirming the rejection of the action for annulment - Rejection of the application
  • No.2 - Bank mortgage - Dispute with the bank - Sale of the pledged assets - Request to refer the dispute to arbitration by virtue of the law and to stop the sale - Rejection of the request
  • No.3 - Agreement - An arbitration council determines the presence of the dispute - Referral to arbitration

Syrian Case Law

  • No.1 - The Court of First Instance has jurisdiction to grant leave for enforcement to a foreign arbitral award - Non jurisdiction for the judge of summary matters - Public policy - Commentary by Ahmad Haddad
  • No.2 - Arbitration clause - Duty to raise the clause in limine litis

Tunisian Case Law

  • No.1 - Contradiction in the grounds of the arbitral award makes it ungrounded
  • No.2 - The domestic arbitral award is subject to annulment even if otherwise requested by the parties
  • No.3 - Arbitrator - Civil servant - Administrative Leave not granted - No effect on the arbitral award
  • No.4 - Agreement on the arbitration time limit - Absence of such an agreement - Provisions of the Arbitration Tunisian Law applicable
  • No.5 - Interim award - No recourse available
  • No.6 - Arbitral award - Settlement between the parties - No obstacle for granting leave for enforcement

Yemeni Case Law

  • No.1 - Annulment request - Rejection by the Court of Appeal - Confirmation by the Supreme Court - Inadmissibility of a recourse against the Supreme Court judgment (No) - New facts not presented to the arbitrators - New facts not included in the annulment request - No ground for annulment - Article 53 of the Arbitration Law - Rejection of the recourse
  • No.2 - Arbitral award - Conformity with the Arbitration Law (Yes) - Arbitrator relying on the arbitration agreement - Mission net exceeded - Enforcement of the award - Award must be final - Recourse against arbitral awards – Recourse limited to cases provided for in the Law - Recourse outside the legal grounds - Recourse rejected
  • No.3 - The substantive aspects of the dispute do not fall within the jurisdiction of the Commercial Division when hearing on action for annulment
  • No.4 - Raising an allegation previously settled in the arbitral award is impermissible when the award is final and conclusive as to the rejection of the action for annulment against it

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTER

I- Awards and Decisions of the International Centre for Settlement of Investment Disputes between States and Nationals of Other States (ICSID), Washington D.C.

  • No.1 - Promise to pay compensation to the investor - Security measures of protection taken by the State - Non-breach of obligations under the BIT - Commentary by Lotfi Chedly
  • No.2 - The res judicata effect of the domestic award - Limited to the national legal order - Not opposed to the admissibility of claims before an international arbitral tribunal - Commentary by Mohamed Al-Hoshan
  • No.3 - Objection under ICSID arbitration Rule 41 (5) - Test imposed by this rule not satisfied-objection rejected - Commentary by Fathi Waly

II- Awards of the ICC International Court of Arbitration

  • No.1 - Credit agreement - Arbitration clause - Extension - Other guarantees - Commentary by Burhan Amrallah
  • No.2 - Second credit facility - Damage resulting thereon - Failing to prove such damage - Knowledge of the Bank of the incapacity of the agent to pay the amount of the credit - Commentary by Wael Tabbarah
  • No.3 - Terms of reference - Request - Legal qualification - Amendment – Not considered a new request - Arbitration Tribunal competent - Commentary by Abdel Hamid El Sarraf
  • No.4 - Interim conservatory measure - Request to recover the amount of the guarantee - Request rejected - Fraud - Failure to provide evidence - Commentary by Khaled El Shalakany

III- Award of The Qatari International Center for Arbitration

  • No.1 - Pending arbitration - Waiver of the parties - Agreement to amicably settle the dispute - Non violation of public policy - Arbitral tribunal decides upon ending arbitral proceedings - Verification by the tribunal of the amicable settlement - Inclusion of the settlement in the minutes - Granting the settlement - The writ for execution

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