International Journal of Arab Arbiration

Volume 3 - No. (2) 2011

 
Table of Contents

ARTICLES

  • Does Qatar Need to Reform its Arbitration Law and Adopt the UNCITRAL Model Law for Arbitration? A Comparative Analysis _ by Zain Al Abdin Sharar

ARBITRATION-RELATED DECISIONS ISSUED BY STATE COURTS IN THE ARAB COUNTRIES

Bahraini Case Law

  • No.1– Supreme Court – Challenge No. 75/2007 – 7 January 2008 ― Domestic Arbitration – Arbitration Clause in the Memorandum of Association – Scope of the Arbitration Clause – Dispute Between Partners – Dispute Between Partners and Heirs of Other Partners with Regard to the Memorandum of Association and to Partners' Rights and Obligations – Claim Pertaining to the General Meeting and to Resolutions Taken Therein – Dispute Falling Within the Scope of the Arbitration Clause (Yes) – Decision Confirmed
  • No.2– Supreme Court – Challenge No. 241 of 2008 – 17 November 2008 ― Domestic Arbitration – Lease Contract – Arbitration Clause – Two Cases Filed Before the State Court – Memoranda Submitted by Defender – Rejection of the Two Cases Due to the Prior Agreement on Arbitration – Bringing Up the Merits in the Same Memoranda – Waiver of the Plea (No) – Other Case filed by Defendant Before the State Courts – Subject Matter and Merits of the Case Not Falling Within the Scope of the Arbitration Clause – Waiver of the Arbitration Clause (No) – Ruling Reversed

Egyptian Case Law

  • No.1– Cairo Court of Appeal – Seventh Commercial Circuit – Case No. 38 of 126/j – Commercial Arbitration – 8 June 2010 ― Domestic Arbitration – Nonparticipation of one Party in the Composition of the Arbitral Tribunal – Validity of Agreement on the Appointment of the Presiding Arbitrator by the President of the Cairo Court of Appeal – Submission of the Request to Appoint an Arbitrator by Means of a Summons – Nature of the Procedural Steps to be Followed for the Submission of Such Request not Explicitly Specified in the Law – Requirement to Submit Such Request by Means of an Order on Petition – Rejection of the Case
  • No.2– Cairo Court of Appeal – Seventh Commercial Circuit – Case No. 46 of 124/j – Commercial Arbitration – 8 June 2010 ― Customs Arbitration – Initiated by Means of a Form – Form Approved by the Customs Authority – Non-inclusion Therein of Any Clause Relating to the Grounding of Arbitral Awards – Implicit Consent to the Non-grounding of Awards by the Parties – The Person Who Made a Mistake May Not Benefit from Such Mistake – The Request for Annulment of the Arbitral Award Due to the Absence of Grounding is Unfounded – Rejection of the Challenge

Jordanian Case Law

  • No.1 – Court of Appeal – Case No. 207/C/2009 – 9 February 2010 ― Domestic Arbitration– Contract Agreement Book for Construction Projects – Arbitration Clause – Referral of the Dispute to Arbitration – Arbitral Award – Request for Annulment – Plea Based on the Inexistence of an Arbitration Agreement – Necessity of Raising the Plea Within the Time Limit for the Submission of the Memorandum of Defense – Grounds for Challenge Exclusively Enumerated in
    Article 49(a) of the Arbitration Law – Request for Annulment Rejected – Arbitral Award Confirmed
  • No.2– Court of Cassation – Case No. 3407/2009 – 23 March 2010 ― Domestic Arbitration – Arbitration Agreement – Request to Stay the Arbitral Proceedings – Arbitral Award Issued Staying the Arbitral Proceedings – Appeal of the Award – Appeal Rejected – Appeal in Cassation – AppealRuling Reversed

Kuwaiti Case Law

  • Court of Cassation – Second Commercial Circuit – Challenge No. 47/2008 – 4 January 2009 ― Domestic Arbitration – Arbitration Agreement – Lack of Evidence that the Company's Board of Director or its General Assembly Authorized the Chairman of the Board to Accept the Arbitration Agreement – Party Lacking Capacity – Arbitral Award Set Aside by the Court of Appeals – Lack of Capacity is a Procedural Plea that is Extinguished if Invoked After the Examination of the Merits – Appointment of an Arbitrator and Attendance at All Hearings – Presenting Defenses on the Merits – Lack of Capacity Plea Extinguished (Yes) – Ruling Reversed

Lebanese Case Law

  • No.1– President of the First Chamber of First Instance in Beirut – Decision No. 8/63 – 29 March 2010 ― Domestic Arbitration – Legal or Contractual Time Limit – Extension Agreed by the Parties (No) – Judicial Request Filed for Extension of the Arbitration Time Limit – Filing Required during the Legal or Contractual Time Limit – Condition Met – Request for Extension Approved – Extension of the Arbitration Time Limit for Six Months
  • No.2– First Chamber of First Instance in Beirut Examining Arbitration Cases – Decision No. 14/75 – 10 May 2010 ― Domestic Arbitration – Request to Challenge the Arbitrator – Arbitrator Stopped Practicing Law – Withdrawal of the Arbitrator Prior to his Acceptance of the Mission – Legal Ground for the Request for Challenge (No) Rejection of the request for challenge of the arbitrator 
  • No.3– President of the First Chamber of First Instance in Beirut – Decision No. 33/81 – 4 October 2010 ― Domestic Arbitration – Arbitration Time Limit – Successively Extended with the Agreement of the Parties – Additional Extension – Agreement of the Parties (No) – Request for Extension of the Arbitration Time Limit – Necessity to be Filed During the Legal or Contractual Arbitration Time Limit – Expiry of the Legal or Contractual Time Limit Prior to the Submission of the Request – Non-Confirmation of the Stay of the Arbitral Proceedings – Rejection of the Request

Libyan Case Law

  • Supreme Court – 2 nd Civil Circuit – Civil Challenge No. 666/51j- 13 May 2007 ― Domestic Arbitration – Settling of a Dispute by Means of Arbitration According to Islamic Law ( Shari'a ) – Respondent is a Party to the Arbitration in His Capacity of Representative of the Family – Settling the Dispute by Way of Arbitration, Prevents Further Review Before State Courts

Moroccan Case Law

  • President of the Commercial Court in Casablanca – Presidential Orders – Order No. 543 – February 5, 2008 ― Domestic Arbitration – Framework Agreement Supplemented by Secondary Agreements – Arbitration Clause Providing That All Disputes Related to the Interpretation, Enforcement Or the Termination of the Contracts Are Referred to Arbitration – Enforcement of Arbitral Award Requested – Arbitral Award Challenged – Arbitral Award Settled the Issues of Compensation and Revocation of the Contracts – Subject Matter of the Arbitration Clause Limited to the Interpretation, Explanation and Enforcement of the Contracts – The Arbitral Award Is Vitiated for Violating Public Policy If It Exceeds the Scope of the Arbitration Clause – Enforcement of the Arbitral Clause Rejected (Yes)

Omani Case Law

  • Court of Cassation – Decision No. 195 – Challenge No. 174/2005 – 31 December 2005 ― International Arbitration – Contract of Carriage by Sea – Arbitration Clause in the Bill of Lading – Insurance Company Substituting the Beneficiary Company – Inadmissibility of the Case Against the Insurance Company Before State Court's Because of the Existence of the Arbitration Clause (No) – Inadmissibility Would Render Omani Courts Incompetent and Would Allow Arbitral Proceedings to Take Place Outside Oman Applying a Law Other Than the Law of Oman – Insurance Company's Rights Stemming from Omani Law – Insurance Company Not Bound by Arbitration Agreement – Effects of the Bill of Landing Limited to the Shipper and Carrier – Arbitration Agreement Extended to Insurance Company (No) – Jurisdiction of the Court of First Instance in Muscat vis-ΰ-vis the Insurance Company (Yes)

Sudanese Case Law

  • Supreme Court – Civil Appeal – No. 1161/2006 ― Domestic Arbitration – Dispute Related to the Termination of a Partnership – Lawsuit Filed before the Khartoum Commercial and Intellectual Property Rights Courts – Plea for the Referral of the Dispute to Arbitration – Court Ordering the Dismissal of the Case for Lack of Jurisdiction – Decision Overruled by the Court of Appeals – Decision Challenged Before the Supreme Court – Absence of an Arbitration Agreement – No Arbitral Body Constituted – Court With Original Jurisdiction to Hear the Dispute – Challenge Rejected (Yes)

Syrian Case Law

  • No.1– Court of Cassation – First Civil Chamber – Decision No. 15/2009 – Case No. 133/2009 ― Domestic Arbitration – Arbitral Award Explicitly Violating the Contract – Decision Issued by the Court of Appeal Refusing the Enforcement – Appeal by Way of Cassation – Court of Appeal's Decision Refusing the Enforcement is Final – Challenge Rejected (Yes)
  • No.2– Eleventh Court of First Instance of Damascus – Case n°336 – Decision n°39/2010 – 30 June 2010 ― Domestic Arbitration – Construction of a Center – Contractors Union – Request for Enforcement of an Arbitral Award – State Courts Role Limited to Review Whether Formal Conditions Were Met and Not the Merits – Validity of the Arbitration Agreement Challenged on the Basis of a Contradiction Within the Various Contractual Documents – Article 15 of the Booklet of Private and Public Legal and Financial Conditions Provides for Arbitration – Article 28 of the Internal Works Contract n°1 of 2006 Provides for an Amicable settlement by Way of Arbitration Failing That the Dispute Will be Referred to the Syrian Administrative Courts – The Booklet is the Higher Rule Governing the Parties' Relationship – The Booklet's Arbitration Clause Prevails – Appointing the Arbitrator is a Recognition of the Validity of the Arbitration Clause – No Jurisdiction of the Administrative Courts – Unions are not Public Entities – Challenge Against the Enforcement Rejected – Enforcement of the Arbitral Award (Yes)

Tunisian Case Law

  • Court of Appeal in Tunis – Case No. 92116 – 26 January 2010 ― Domestic Arbitration – Arbitral Award – Challenge by Way of Annulment – Grounds for Annulment Strictly Determined in Article 78/2 of the Arbitration Code – Grounds for Annulment Are Exclusive and May Not Be Expanded or Derogated From – Challenge Related to the Invalid Constitution of the Arbitral Tribunal and the Erroneous Determination of the Parties to the Dispute – Not Grounds for Annulment – Raising Formal Pleas is Only Permissible by the Party Concerned with the Formal Violation – Parties' Waiver of the Arbitration Clause (No) – Provisions of Article 175 of the Tunisian Code of Civil Procedure Pertaining to the Grounds of a Challenge by Means of Cassation Do Not Fall Under the Grounds for Annulment – Violation of the Right of Defense (No) – Challenge Rejected (Yes)

UAE Case Law

  • Court of Cassation – Dubai – Challenge No. 142/2009 Civil – 13 September 2009 ― Domestic Arbitration – Arbitration Clause – Suit Filed By One Party Before a State Court Despite the Arbitration Clause – Non-invocation of the Arbitration Clause by the Other Party at the First Hearing – Arbitration Clause Cancelled – Definition of First Hearing – Hearing During Which the Defendant Appears Before the Court Either Representing Himself or Represented by an Attorney – Hearing At Which the Attorney is Authorized by the Court to Represent His Client Provided That He Submits the Power of Attorney in a Subsequent Hearing – Case Meeting the Definition of a First Hearing – Non-invocation of the Arbitration Clause by the Attorney – Dismissal of the Case Due to the existence of the Arbitration Clause (No)

Yemeni Case Law

  • Supreme Court – Commercial Circuit – Commercial Challenge No. 39413 – 13 March 2010 ― Domestic Arbitration – Arbitral Award – Challenge Based on Failure to Examine Certain Claims and for Ruling Extra Petita – Defendant Compelled by the Arbitrator to Rectify the Errors in a Letter Submitted by Him – Rectification Not Requested by Claimant – Arbitrator Omitting Claims Pertaining to the Rescission of the Contract and to Indemnification as Submitted by the Claimant – Ruling Rendered by the Commercial Division Omitting This Challenge – Commercial Division Not Settling the Extra Petita Challenge – Violation of the Right of Defense – Decision Reversed and Action Remitted to the Same Division for Review

ARBITRATION NEWS

  1. Update on new/recent laws, cases and arbitration centers 
  2. Conferences, trainings and seminars
  3. Miscellaneous/news about law firms and other institutions in the Arab countries
 
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