International Journal of Arab Arbiration

Volume 2 - No. (2) 2010

 
Table of Contents

Introductory note

ARTICLES

  • The Development of Arbitration in the Sultanate of Oman – by Abdallah Ben Mohamed Al Saidi
  • The Two-Stage Settlement of Arbitral Disputes in Morocco – by Saad Moumi
  • The New Libyan Draft Law on Arbitration – by Alkoni Ali Abouda
  • The Role of Saudi Courts in the Arbitration Process – by Faisal M. Al-Fadhel
  • A New Draft Arbitration Law in the Republic of Yemen – by Rita Bou Aoun

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

Algerian Case Law

  • No.1– Supreme Court, Civil Chamber, case n°326706 – December 29, 2004 – Conditions of Enforcement Provided in Article 458 bis 18 of the Algerian Civil Procedure Law and article 4/2 of the New York Convention of 1958 – Leave of Enforcement Granted by the Judicial Council of Algers (First Instance Court) – Cassation Against the Decision of Enforcement – Conditions of Enforcement Not Respected For Not Submitting the Original or Certified Copy of the Arbitration Agreement – Decision of Enforcement Annulled by the Algerian Supreme Court (yes) – Case Remitted Back to the Judicial Council for Review
  • No.2– Supreme Court, Civil Chamber, case n°96228 – July 7, 1992 – Dispute Between a National and Foreign Company – Decision of the Judicial Council of Algers (First Instance Court) Referring the Dispute to Arbitration – Action Against the Council's Decision Before the Algerian Supreme Court – Arbitration Provisions Inapplicable To a Dispute Including a Foreign Party – Decision Annulled (Yes) – Case Remitted Back to the Judicial Council for Review

Bahraini Case Law

  • No.1– Court of Cassation, n° 286/2005, January 23, 2006 – Agreement on Referral to Arbitration – Agreement Considered Waived For Submitting the Claims Before State Courts – Agreement to Refer to Arbitration Considered As a Public Policy Rule (No) – Jurisdiction of State Courts Confirmed (Yes). Commentary by Hassan Radi
  • No.2– Court of Cassation, n° 328/2005, January 30, 2006 – Arbitrability of Claims Involving Fraud and Abuse of Power – Claims Not Featuring Any Criminal Law Aspect But Related to a Financial Dispute – Dispute Arbitrable (Yes) – Exception – Claims Related to Public Policy Only – Dispute Referred to Arbitration (Yes). Commentary by Hassan Radi

Egyptian Case Law

  • No.1– Cairo Court of Appeals, 7th Commercial Circuit, n°75/117, January 8, 2002 – Action for Annulment Against an Award Rendered in ad hoc Arbitration – Arbitral Award Including a Penalty Clause – Arbitral Award Qualified as a Contract (Yes) – Award Subject to the Provisions of the Egyptian Arbitration Law n°27 of 1994 (No) – Action for Annulment Rejected (Yes). Commentary by Ahmad Sadek Al-Kosheri
  • No.2– Cairo Court of Appeals, 7th Commercial Circuit, n°72/117, January 8, 2002 – Agreement of the Parties on Applying Egyptian Law in the Arbitral Proceedings – Arbitral Award Rendered by Arbitrators as Amiable Compositors – Action for the Annulment Against the Award – Reasons of Annulment – Arbitrator's Lack of Neutrality – Reason Rejected (yes) – Arbitral Award Annulled for Not Applying the Agreed Law (Yes). Commentary by Mohamad Salahudine Abdul Wahab
  • No.3– Cairo Court of Appeals, 8th Commercial Circuit, n°75/125, May 18, 2009 – Independence of the Arbitrator – Obligation to Disclose Circumstances Likely to Give Rise to Doubts as to his Impartiality – Article 16/3 of the Egyptian Arbitration Law n°27 of 1994 – Party-Appointed Arbitrator Acting as an Attorney on Behalf of the Respondent Company – Action for Annulment Against the Arbitral Award Filed by the Claimant – Ignorance by the Claimant of the Circumstances Affecting the Independence of the Arbitrator During the Arbitral Proceedings – Arbitral Award Annulled (Yes).

Jordanian Case Law

  • No.1– Amman Court of Appeals, n°196/2009, July 12, 2009 – Orders for Extension of the Arbitration Period Rendered by the Arbitral Tribunal – Request of the Respondent to Stop the Arbitral Proceedings – Orders for Extension Allowed by the Arbitration Clause – Article 37/a of the Omani Law on Arbitration Requiring the Agreement of the Parties on the Period of Arbitration – Article Related to Public Policy (No) – Request to Stop the Proceedings Rejected (Yes)
  • No.2– Amman Court of Appeals, n°189/2008, July 7, 2009 – Challenge to the Appointment of the Arbitrator – Reasons – Relationship Between the Arbitrator and One of the Parties – Challenge Not Supported With Serious and Credible Grounds – Challenge Rejected (Yes)

Kuwaiti Case Law

  • No.1– Court of Appeals, December 20, 2006 – Arbitration Proceedings – Challenge Against the Validity of the Arbitration Clause – Arbitration Clause Signed by the Representative of the Respondent Company – Representative Duly Authorized to Sign on Behalf of the Respondent (Yes) – Arbitration Clause Valid (Yes) – Challenge Rejected (Yes)
  • No.2– Judicial Arbitral Tribunal, n°15, March 13, 2000 – Arbitration Clause in an Insurance Policy Referring to an ad hoc Arbitration – Request to Arbitration Filed Before a Judicial Arbitral Tribunal – Challenge Against the Jurisdiction of the Tribunal – Challenge Approved (Yes) – Decision by the Judicial Arbitral Tribunal Declaring Itself Incompetent to Settle the Dispute – Issues of Jurisdiction Related to Public Policy (Yes) – Dispute Referred to ad hoc Arbitration Pursuant to the Arbitration Clause

Lebanese Case Law

  • No.1– Beirut Court of Appeals, 1st Chamber, n°147/2007, October 28, 2009 – Arbitral Award – Action for Annulment Against the Award – Reasons for Annulment – Valid Capacity of the Limited Liability Company's Director to Conclude an Arbitration Clause (Yes) – No Mention of the Place Where the Arbitral Award Must be Rendered – Award Valid (Yes) – The Parties Discussed all the Facts Relied upon by the Tribunal – Right of Due Process Complied With (Yes). Commentary by Mouhib Maamari
  • No.2– Beirut Court of First Instance, 1st Chamber, n°29/2009, December 14, 2009 – Arbitral Award Rendered in Syria – Action for Leave of Enforcement at the Court of First Instance in Beirut – Conditions of Enforcement in Lebanon According to Articles 21 and 23 of the Lebanese-Syrian Judicial Agreement – Leave for Enforcement to be First Granted in Syria – Lebanese Syrian Judicial Agreement Precedes the New York Convention of 1958 – Action for Enforcement Rejected (Yes). Commentary by Samir Abillamaa
  • No.3– Beirut Court of First Instance, n°74/26, October 19, 2009 – Arbitration Clause Featuring the Name of the Appointed Arbitrator – Arbitral Award Rendered – Award Left for Ten Years Without Enforcement – Award Considered as Waived – Request to Appoint a New Panel of Arbitrators by the Beirut Court of First Instance – Arbitrator Featured in the Arbitration Clause is Appointed Intuitu Personae – Parties Failed to Agree on a New Arbitrator – Request for Appointment Rejected (Yes) – Arbitration Clause Waived (Yes). Commentary by Ali Rahal

Libyan Case Law

  • No.1– Supreme Court, n°159/50, March 27, 2006 – Arbitration Clause Provided in an Insurance Policy – Action for Compensation Filed Before the Court of First Instance – Challenge Against the Jurisdiction of the Court Filed by the Respondent Based on the Existence of an Arbitration Clause – Ruling Rendered by the Court of First Instance Retaining Jurisdiction and Granting Compensation – Ruling of the Court of First Instance Confirmed by the Court of Appeal – Action for Cassation – Lack of Jurisdiction of the State Courts due to the Presence of an Arbitration Clause – Decision in Appeal Annulled (Yes) – Dispute Referred to Arbitration (Yes)
  • No.2– Supreme Court, n°693/50, July 5, 2006 – Ruling Rendered by the Court of Appeal Recognizing the Arbitral Award – Action for Cassation Filed Before the Supreme Court – Article 337 of the Code of Civil Procedure Regarding the Reasons of Cassation Against Rulings Rendered in Appeal – Action Not Provided as a Reason for Cassation – Action Rejected (Yes)

Moroccan Case Law

  • No.1– Commercial Court of Casablanca, n°569, March 5, 2008 – Arbitral Award Settling Labor Disputes – Request for Enforcement Submitted to the Commercial Court of Dar el Bayda' – Non-Jurisdiction of the Commercial Court to Grant Leave for Enforcement – Request Rejected (Yes)
  • No.2– Casablanca Court of Appeals, 1st division, n°1784/97, November 4, 1997 – Arbitral Award Rendered – Effects of the Award – Garnishment Imposed By the Court of Appeal Against a Third Party Prior to Granting Leave for Enforcement of the Award – Garnishment Valid (Yes)

Omani Case Law

  • Court of Appeals, n°15/94, April 25, 1994 – Action for Appeal of the Arbitral Award – Violation of the Limits of the Arbitrators' Mission – Arbitral Award Settling Disputes not Determined in the Arbitral Agreement – Limits of the Mission Violated (Yes) – Award Partially Annulled (Yes) – Contradiction in the Merits of the Award (No) – Article 64 of the Sultanate Decree 32/84 on Arbitral Law – Arbitral Awards Not Subject to Any Appeal – Action for Appeal Rejected (Yes)

Qatari Case Law

  • Supreme Court of Doha, Civil Chamber, n°194/2003, May 7, 2003 – Arbitration Agreement Providing for the Appointment of an Arbitrator – Failure by the Parties to Appoint an Arbitrator – Dispute Referred to the Doha High Civil Court – Challenge Against the Jurisdiction of the State Court – Challenge Rejected – Jurisdiction of the Civil Court Confirmed

Saudi Arabian Case Law

  • Court of Grievance, Commercial Circuit, No. 58/C/C/3, May 7, 2003 – Annulment Against the Arbitral Award Submitted by the Respondent to Arbitration to the Court of Grievance – Reasons for Annulment – Respondent's Evidencing his complying with his Obligations Rejected by the Arbitral Tribunal – Arbitral Award Annulled (Yes) – Dispute Settled by the Court of Grievance – Respondent Sentenced to Pay the Part of the Profits to the Claimant. Commentary by Khaled Bin Abdul Aziz Al-Nouwaiser

Syrian Case Law

  • Damascus Court of Appeals, n°245, October 22, 2008 – Leave for Enforcement of the Award Granted by the Court of First Instance in Damascus – Decision of Enforcement Appealed – Grounds of Appeal – Violation of the Limits of the Arbitrator's Mission (No) – Appeal Against the Enforcement is Not an Appeal Against the award – Decision of Enforcement Confirmed (Yes) – Action for Appeal Rejected

UAE Case Law

  • No.1– Abu Dhabi Federal Court, Commercial Chamber, n°676/2009, October 18, 2009 –Law of Constitution of the Market – Decision of the Chairman of the Securities and Commodities Authority Imposing Arbitration for Disputes Arising From the Trading of Securities and Commodities – Mandatory Arbitration – Arbitration Award Rendered – Action for Annulment Against the Arbitral Award – Grounds for Annulment – Absence of an Agreement on Settling Disputes Through Arbitration – Article 203 of the Code of Civil Procedure – Requirement for a Specific Arbitration Agreement in Writing – Inexistence of an arbitration agreement – Violation of the Rights of Defense (Yes) – Arbitral Award Annulled (Yes). Commentary by Jassem Ali Al-Shamisi
  • No.2– Court of Cassation, Commercial Chamber, Abu Dhabi, n°308/25j, March 21, 2005 – Arbitration Agreement – Judicial Action Filed Before the Abu Dhabi Court of First Degree – Request Amended in the Said Action Demanding the Appointment of the Arbitrators – Request Rejected – Appeal – Decision of the Court of First Degree Annulled – Case Returned to the Abu Dhabi Civil Court of First Degree to Appoint the Arbitrators According to the Arbitration Agreement – Cassation – Decision in Appeal Confirmed (Yes) – Action in Cassation Rejected (Yes)

ARBITRATION-RELATED DECISIONS ISSUED BY NON-ARAB STATE COURTS

French Case Law

  • Paris Court of Appeal, 3rd Chamber, n°09/14087, December 8, 2009, Elham Mohammad Awad Ben Laden (Lebanon) v. SARL Mohammad Ben Laden (KSA) and Issa Ben Laden (Paris) – International Arbitration – Arbitration Clause Provided in the Company's Bylaws – Dispute Over the Enforcement of the Bylaws – Claims Filed Before the Swiss and French Judiciary – Swiss Federal Tribunal Retaining Jurisdiction to Settle the Dispute Due to the Lack of Evidence that the Claimant Has Approved the Arbitration Clause – Saudi Law Applicable According to Swiss Courts to the Existence of and Consent to the Arbitration Agreement – Paris Court of Appeal Declaring Itself Not Having Jurisdiction to Settle the Dispute on the Existence of an Arbitration Clause – Competence-Competence – Swiss Decision Not Having Any Effect in France – Failure by the Claimant to Prove that Parties and Subject Matter of the Dispute Are the Same in Both Cases – Article 26 of the Lugano Convention Not Applicable – Claimant Is a Saudi National and Residing Outside France – Dispute Referred to Arbitration (Yes). Commentary by Laurent Jaeger and James Claxton

USA Case Law

  • United States District Court, D. Delaware, Civ. No. 06-415-SLR, Sept. 28, 2007, URS CORPORATION v. The Lebanese Company For the Development And Reconstruction Of Beirut Central District SAL (SOLIDERE), 512 F. Supp. 2d 199 (D. Del. 2007). – International Arbitration – Services Contract Concluded Between SOILDERE and Radian International LLC to be Enforced in Beirut – Arbitration Clause Provided in the Said Contract Referring to the Lebanese Law as the Applicable Law and the ICC Arbitration Rules – Purchase of Radian by URS Corporation – Dispute Over the Enforcement of the Contract – Request for Arbitration Filed by SOLIDERE Against Radian – ICC Award Rendered in 2003 – Termination of the Contract by SOLIDERE – Second ICC Arbitration Initiated Against Both Radian and URS – Action Filed by URS Challenging the Jurisdiction of the Arbitral Tribunal Before the US District Court – Federal Arbitration Act – New York Convention – Grounds for Challenge – Lack of Agreement by URS on the Arbitration Clause – Action Rejected (Yes) – US Courts Have no Power to Extend its Jurisdiction Over an Arbitration Taking Place Abroad (in France) – Requirement by the New York Convention Not to Issue an Anti-Arbitration Injunction Against a Foreign Arbitration – No Anti-Arbitration Injunction Issued. Commentary by Caline Mouawad

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

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

  • April 5, 2004 – Case n°12144 – Violation of the Obligations Set Forth in a Sale Contract Including an Arbitration Clause – Object of the Sale Contract Not in Compliance with the Specifications Agreed Upon – Request for Arbitration – Object of the Sale Received and Price of the Sale Paid by the Claimant (First Purchaser) – Consequence – Waiver of the Right for Guarantee – Syrian Law Applicable – Article 415 of the Syrian Civil Code on the Obligations of the Seller – Sub Sale Contract Concluded by a Second Purchaser – Guarantee and Claims of the Second Purchaser Cannot Be Based on the Original Sale Contract Including the Arbitration Clause – Arbitral Tribunal Has no Jurisdiction to Settle the Dispute Arising from the Sub-Sale Contract – Request for Arbitration Rejected. Commentary by Fawzi Sami

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

  • April 10, 1994, Case n°19 – Arbitration Clause Included in a Lease Contract – Dispute Over the Enforcement of the Contract – Termination of the Contract by the Lessor (Respondent to Arbitration) Due to Lessee's (Claimant) Failure to Undertake the Lease Payments – Dispossession of the Hotel From the Lessee Company – Request for Arbitration – Challenge Against the Jurisdiction of the Tribunal in Considering the Claimant's Claims – Mission of the Arbitral Tribunal Set Forth in the Arbitration Clause – Tribunal Retains Jurisdiction – Principle of Competence-Competence – Challenge on Jurisdiction Rejected (Yes) – Lease Payments Not Enforced by the Lessor Company – Compensation Granted for the Lessee Company. Commentary by Hisham Sadek

III- Awards from the International Arbitration Centre of the Austrian Federal Economic Chamber (VIAC)

  • August 5, 2008, Case n° SCH-5024 – International Arbitration – Purchase Order Concluded Between the Claimant and the First Respondent Relating to a Project in Saudi Arabia – Arbitration Clause Provided in the Confirmation of the Purchase Order – Request for Arbitration Filed by the Claimant Against the First and Second Respondents Before the VIAC – Challenge on Jurisdiction Submitted by Both Respondents – Grounds of the Challenge – Second Respondent Not Having Concluded an Arbitration Agreement With the Claimant – Respondents Has Not Agreed on Multiparty Arbitration Proceedings As per Article 15 of the VIAC Rules – Arbitration Clause Not Extendable to the Second Respondent – Second Respondent Has Not Identical Rights and Obligations as the First Respondent – First and Second Respondents Are Not Joint and Several Debtors vis-ΰ-vis the Claimant – Arbitral Tribunal Has No Jurisdiction Over the Second Respondent –Claimant's Claims vis-ΰ-vis the Second Respondent Rejected (Yes) – Multiparty Proceedings Inadmissible. Commentary by Gerold Zeiler

ARBITRATION NEWS

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

TEXTS/LAWS/REPORTS/DOCUMENTS

  • Yemen New Draft Arbitration Law in Civil and Commercial Matter of 2010
  • Libyan New Draft Arbitration Law, Dated April 2, 2009
 
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