International Journal of Arab Arbiration

Volume 1 - No. (4) 2009

 
Table of Contents
 

Introductory note

DOCTRINE

 

  • The Review of an International Arbitral Award – A Comparison Between the New Algerian Law and French Law – by Mathias AUDIT
  • Commentaries on the Commission on Islamic Finance's Report: « Proposal – Group on Governing Law and Dispute Resolution in Islamic Finance », G. Affaki (Ed.), I. Fadlallah, D. Hascher, A. Pézard, F-X. Train, 21 September 2009»
    1. Paris' Good Hosting of Arbitrations Implementing Islamic Sharia – by Abdel Hamid El Ahdab
    2. Commentary on the Report of the Working Group Regarding the Applicable Law and the Settlement of Disputes Arising from Islamic Finance – by Mohamed Selim El Awa
    3. Commentary on a Report of the Working Group Commissioned by the Islamic Finance Committee in France to Examine the Law that Should be Applied, and Settle Disputes in the Field of Islamic Finance – by Abdel Sattar Al Khueildy
    4. Summarized Analytical Study on the Report Submitted to the Paris Europlace Commission on Islamic Finance by the Group on Governing Law And Dispute Resolution In Islamic Finance Issued on September 21, 2009 – by Raafat M. Rachid Mikati
  • The Shari'a Factor in International Commercial Arbitration- by Faisal Kutty
  • Comparative Analysis Between the Peruvian Arbitration Law and the Arbitration Law of the Dubai International Financial Centre – by Carlos Alberto Matheus López
  • Arbitration Time Limits Under the Libyan Code of Civil and Commercial Procedure– by Mohamed Werfalli

ARBITRATION RELATED DECISIONS ISSUED BY STATE COURTS

 

Bahraini Case Law

 

  • No.1 - Arbitral Award – Decision Setting Aside the Award – Cassation – Grounds for Cassation – Expiration of the Arbitration Period – Commencement of the Period – Article 237 of the Code of Procedure – Arbitration Period of Three Months – Award Rendered Thereafter – No Postponement or Interpretation Possible – Cassation Rejected – Annulment confirmed
  • No.2 - Arbitration Clause – Scope of the Clause – Clause Only Limited to Disputes Related to the Performance of the Agreement and not Extending to Disputes in Relation to the Annulment of that Agreement – Dispute Not Falling Within the Scope – Signature by the Respondent of the Request for Arbitration – Defense and Counterclaim Submitted by the Respondent – Matters Insignificant to the Determination of Jurisdiction – Jurisdiction of the Arbitral Tribunal (No)

Egyptian Case Law

 

  • No.1 - Contract of Sale of Goods – Clause for Payment of Customs and Duties – Validity – Arbitration Award – Annulment Recourse – Findings of the Arbitrators – Court of Appeal Not a Court of Second Instance for Arbitral Awards – Rules of Evidence of Civil and Commercial Procedures – Not Binding Upon The Arbitrators
  • No.2 - Arbitral award – Res Judicata Effect – Annulment Recourse – Limited Grounds – Article 512 of the Code of Procedure – Recourse Rejected
  • No.3 - Arbitral Award – Res Judicata Effect – Interest Exceeding the Legal Rate – Public Policy – Violation (No) – Review by Local Courts – New York Convention – Binding Effect on Domestic Courts to Recognize Arbitral Awards
  • No.4 - Arbitral Award – Interest Exceeding the Legal Rate – Violation of Public Policy (Yes) – Violation Separated From the Rest of the Award – Partial Annulment
  • No.5 - Arbitration Clause Referring to ICC Rules of Arbitration – Arbitral Rules Prevailing Over the Egyptian Arbitration Law – Exclusion of Rules of Public Policy – Arbitration Clause Not Specifying the Disputes – Validity (Yes) – No Obligation to Specify the Dispute – Annulment Judge – Review – Grounds for Annulment – Error (No) – A Request for Annulment Differs From an Appeal

U.A.E. Case Law

 

  • No.1 - Arbitral Award – Request for Annulment – Grounds for Annulment – Article 216 of the Code of Civil Procedure – Grounds Exclusively Provided Therein – Request Not Fitting any of These Grounds – Request Rejected
  • No.2 - Arbitration Agreement – Agent Exceeding the Limits of the Agency Contract – Arbitral Award – Lack of Legal Grounds in the Award – Reason For Annulment (No)
  • No.3 – Arbitration Clause – Designation of the Arbitrators Therein – Amendment of the Clause Cannot Be Presumed – Condition for Amendment – Approval of Both Parties Required – Decision on Such Amendment Is for the Court of Merits

Kuwaiti Case Law

 

  • Sale of Stocks of Companies Listed on the Kuwait Stock Exchange (KSE) – Arbitration Clause Included in the Sale Contract – Request of Arbitration – Absence of Registration of the Sale in the KSE – Absence of Notification of that Sale to the KSE's Committee – Decree Law No. 31 of 1990 regarding the trading of stocks and creation of funds – Requirement of Public Policy (Yes) – Violation (Yes) – Annulment of the Award

Lebanese Case Law

 

  • No.1 - Right of Defense – Oral Evidence Submitted by the Litigants – Witnesses' Testimony – Arbitral Tribunal's Freedom to Accept Evidence as it Sees Fit – Discretionary Power – Violation of the Right of Defense (No). Commentary by Ali Rahal
  • No.2 - International Public Policy – Content – Set of Rules Applied in Several Countries – International Character – GAFTA Contract – Mission of the Arbitrators – Mission Not Exceeded – Exequatur – Appeal – Rejection of the Appeal
  • No.3 - Arbitral Award – Exequatur – Liquidation of the Company – Creation of a Committee for the Liquidation – Arbitrator Acting as an Agent to Represent the Parties and the Company vis-ΰ-vis Third Parties – Annulment Request of the Award – Rejection of the Request – Recourse to Cassation – Allegations of Violation of Due Process Submitted for the First Time in Cassation – Recourse Rejected
  • No.4 - Arbitral Award – Annulment Recourse – Arbitrator's Duty to Render the Award in Public (No) – The Award May be Rendered Whenever the Arbitrator Deems it Appropriate – Mandatory Compliance With Arbitration Period – Application of Due Process Principles to Arbitration (No) – Principle of Confidentiality – Rules Governing the Revocation of Contracts – Validity of these Rules Controlled Only Through Appeal – Allegations Pertaining to the Merits of the Dispute – Request for Annulment Rejected

Libyan Case Law

 

  • No.1 – Foreign Arbitral Award – Conditions of Enforcement or Recognition – If Awards Are Final and Enforceable in their Place of Render – Exception to the Enforcement – Conditions of Enforcement of Libyan Awards Abroad Differ From Those Required for the Enforcement of Foreign Awards in Libya
  • No.2 - Arbitration Agreement – Waiver of the Right to Appeal the Arbitral Award – Arbitral Award – Appeal Filed – Appeal Rejected – Article 767 of the Code of Civil and Commercial Procedure – An Annulment Request Differs From an Appeal – Article 769 of the Code of Civil and Commercial Procedures – Appeal Rejected

Palestinian Case Law

 

  • Arbitral Award – Granting Leave for Enforcement by the Court of First Instance of Bethlehem – Appeal – Appeal Rejected – Cassation Recourse – Time Limit – Expiration – Recourse Submitted Thereafter – Cassation Recourse Rejected. Commentary by Issam Al- Tamimi

Tunisian Case Law

 

  • Constitution of the Arbitral Tribunal – Award – Arbitrator Acting as Public Servant– Absence of Authorization for his Appointment within the Arbitral Tribunal – Grounds for Annulment (No) – Right of Due Process – Respect of the Right (Yes) – Extension of the Arbitration Period – Award Rendered Within the Time Limit – Recourse for Annulment Rejected

Yemeni Case Law

 

  • No.1 - Arbitral Award – Registration of the Award by the Arbitration Tribunal at the Competent Court – Time Limit for Registration Expired – Validity of the Award Affected (No) – Agreement on Appointing a Sole Arbitrator – Constitution of the Arbitral Tribunal – Validity (Yes) – Recourse for Annulment Rejected
  • No.2 - Judicial Arbitration – Number of Arbitrators – Tribunal Necessarily Composed of Three Members – Rule of Public Policy – Award Signed by One Member – Violation of Public Policy (Yes) – Annulment of the Award
  • No.3 – Arbitral Award – Annulment Request – Rejection – Recourse to Cassation – Violation of the Right of Defense – Case Referred to the Court of Appeal to Allow the Claimant to Submit his Claims

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

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

 

  • No.1 - Construction Contract – Clause on Jurisdiction Referring Disputes to The Conseil d'Etat (the Lebanese Higher Administrative Court) – Case Pending Before the Lebanese Conseil d'Etat Since 2001 – Bilateral Investment Treaty Between Italy and Lebanon referring Disputes to the ICSID – Request for Arbitration Filed With ICSID – Definition of Investment – Jurisdiction ratione temporis – BIT applicable on Disputes Following its Entry Into Force – Jurisdiction ratione materiae – Tribunal Competent to Review Treaty Claims – Tribunal Competent as Well to Review Contract Claims that Violate the BIT – Jurisdiction ratione personae – Administrative Institutions Acting as Agents of the Government Constitute Governments' Acts As Well – Acts of Public Authorities Constituting Grounds for Treaty claims – Distinction Between Contract Claims and Treaty Claims – Umbrella Clause in the BIT do not Allow Contract Claims to be Dealt With as Treaty Claims – Events Occurring in Lebanon do not Constitute a Denial of Justice in a Case Pending Since 2001 – Stay of Arbitral Proceedings Till a Ruling is Rendered by Local Courts not Conceived for the Arbitral Tribunal – Jurisdiction of the ICSID Over the Dispute Confirmed – Distinction Between Issues of Jurisdiction and Issues Going to the Merits. Commentary by Ibrahim Fadlallah
  • No.2 - Contract on the Provision of a Longwall Mining System – Claims Related to Bank Guarantees – Bilateral Investment Treaty Between the Arab Republic of Egypt and the United Kingdom and Northern Ireland – Referring Disputes to an ICSID Arbitral Tribunal – Definition of Investment – Contract Not Including any Investment Component – Jurisdiction ratione materiae – Lack of Jurisdiction of the ICSID Tribunal – Request to Arbitration Rejected. Commentary by Muhieddine Alam El Dine

II- Awards from the ICC International Court of Arbitration

 

  • No.1 - Arbitration Clause Included in a FIDIC Contract – Contract Governed by the Sharia Law – Recourse to Annulment Against the Contract – Recourse Rejected on the Basis of the Gharar Principle – The Special Condition Laid Down in a Contract is Valid – Exception if the Condition Modifies the Essence of the Contract – Ruling with Interest is Prohibited – Jurisdiction of the Arbitrator to Examine the Dispute According to the Applicable Law (Yes). Commentary by Mohammed Selim el-Awa
  • No.2 - FIDIC Contract – Arbitration Request – Clause Referring Disputes to an Engineer for Amicable Settlement before Arbitration – Precondition not Satisfied by the Parties – Arbitration Request Rejected. Commentary by Badria Abdullah El Awady and Ibrahim Al Mulla

III- Awards from the Cairo Regional Centre for International Commercial Arbitration

 

  • No.1 - Supply Contract – Purchase According to a Sample – Hidden Defect in the Supplied Goods – Claim to Restitute the Amounts Paid – Foreign Reason Preventing the Respondent from Collecting the Goods – Article 215 of the Civil Code – Absence of Error – Claim for Compensation of Moral Damages – Not Within the Arbitral Tribunal's Jurisdiction. Commentary by Samir Abillamaa
  • No.2 - Administrative Contract – Dispute Over the Enforcement of the Contract – Nature of the Contractor's Obligations – Distinction Between Obligations of Means and Obligation of Results – Delays in Enforcement of the Contractual Obligations – Theory of Urgent Circumstances – Evaluation of Damages – Financial Balance of the Contract – The Right to Enforce a Fine Should Not Exceed a Reasonable Level and Cause Financial Disparities Between the Parties – Amount of Fines Enforced to be Limited. Commentary by Waλl Tabbarah

IV- Awards from the Qatar International Center for Conciliation and Arbitration

 

  • Supply Contract – Clause Referring Dispute to an Arbitral Tribunal – Interpretation of Clear Contractual Provisions Not Allowed by the Tribunal – Performance of the Contract – Exceptional Circumstances Creating Heavy Burden on the Contractor – Burden reduced

 

ARBITRATION NEWS

TEXTS/LAWS/REPORTS/DOCUMENTS

 

  • Commission on Islamic Finance's Report: « Proposal – Group on Governing Law and Dispute Resolution in Islamic Finance », G. Affaki (Ed.), I. Fadlallah, D. Hascher, A. Pézard, F-X. Train, 21 September 2009»
 
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