International Journal of Arab Arbiration

Volume 3 - No. (3) 2011

 
Table of Contents
 

ARTICLES

  • Arbitration and the New Political Context in Tunisia – by Walid Ben Hamida
  • The DynCorp Case: The Journey of an International Arbitral Award – by Caline Mouawad, Marwan Sakr, Jean-Pierre Harb and Christophe Lobier

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

Kuwaiti Case Law

  • Court of Cassation – Civil circuit – Civil Challenge No. 18/2004 – 11 October 2004 ― Insurance Policy Including an Arbitration Clause – Plea of Lack of Judicial Jurisdiction Due to the Existence of an Arbitration Clause – The Jurisdictional Plea does not Relate to Public Policy – Conventional Nature of Arbitration – Public Policy Not Violated – Implicit Waiver of the Jurisdictional Plea Once Dealing with the Merits – Dismissal of Cassation

Lebanese Case Law

  • No.1 - Beirut Civil Court of Appeals – First Chamber – Decision No. 939/2011 – 7 July 2011 ― A Contract Between Two Parties Containing an Arbitration Clause – Assignment of the Contract to a Third Party – Arbitration Clause is Attached to the Contract – Assignment of the Arbitration Clause – Dispute Over the Enforcement of the Contract – Referral to Arbitration Before the Lebanese Arbitration Center – Accepting Institutional Arbitration Implies Waiver of the Right to Appeal – Award Unappealable – Action for Annulment of the Arbitral Award – Grounds for Annulment – Limitation of the Annulment Judge's Jurisdiction to the Grounds for Annulment Stated in Article 800 of the Code of Civil Procedure – Alleged Violation of the Right of Defense, Public Policy and the Principle of the Relative Effect of the Contract – Plea for Annulment Rejected – Award Valid (Yes)
  • No.2- Beirut Civil Court of Appeals – First Chamber – Decision No. 313/2011- 3 March 2011 ― Arbitral Award – Action for Annulment – Article 800 of the Code of Civil Procedure – Grounds for Annulment – Alleged Lack of the Necessary Particulars – Alleged Violation of Public Policy due to the Breach of the Rights of Defense – Arbitrator Allegedly Exceeding the Scope of His Mission – Plea for Annulment Rejected – The Arbitrator's Right to Justify His Decision by Specific Grounds Forming his Conviction – Confirmation of the Arbitral Award (Yes)
  • No.3- 8 th Chamber of First Instance in Mount Lebanon – Jdeidet El Maten – Decision No. 2/2011 – 17 January 2011 ― Arbitration Clause – Even Number of Arbitrators – Legal Means to Save the Arbitration Clause or Submission Agreement – Addition of a Third Arbitrator – Absence of Specifications Related to the Way of Appointing the Arbitrators – Jurisdiction of the President of the First Instance Court – Lack of Impartiality of the Arbitrator – Requirement to Submit a Separate Challenge of the Arbitrator, Independent from the Request to Annulment of the Arbitration Clause –Claims Rejected

Libyan Case Law

  • Supreme Court – Civil Challenge No. 179/52j – 17 May 2006 ― Arbitral award –Issue thereof in a foreign country – Order of enforcement – Permissible, if it is final and enforceable in the country where it was issued – Notification of the arbitral award to the party against whom it was issued not required – Dismissal of the challenge

Moroccan Case Law

  • Commercial Court of Appeal – Casablanca – Commercial Court – First Chamber – Presiding Judge – Order No. 679/2010 – 31 March 2010 ― Arbitration Agreement Concluded before the Promulgation of Law No. 5 of 2008 – Application of the Old Version of the Code of Civil Procedure relating to Arbitration – Leave for Enforcement – Jurisdiction of the Commercial Court – Public Policy and Commercial Disputes – No Breach of Statutory and Legal Requirements and of the Rights of Defense – Granting the Leave for Enforcement to the Arbitral Award

Qatari Case Law

  • No.1- Supreme Judiciary Council – Court of Appeal – Civil and Commercial Matters Circuit – Appeal No. 631/2006 – 28 January 2008 - Foreign Company ― Agreement to Establish a Branch Office in Doha – Appointment of Service Agent of Qatari Nationality pursuant to Law No. 25 of 1990 – Performance of Obligations in Consideration of Remuneration – Remuneration Paid for Contracts Awarded in Qatar – Agreement Term: 60 Months – Termination Possible after One Year – 90 Days prior Notice Required – Law No. 25 of 1990 Repealed by New Law No. 13 of 2000 – Foreign Companies Authorized to Work in Qatar without the Need to Have a Service Agent – Termination of Agreement by Foreign Company – Notice Duly Sent – Dispute – ICC Rules of Conciliation and Arbitration – Request for Arbitration – ICC International Court of Arbitration – Request to Appoint an Arbitrator – Qatari Company Requested to Make Advance Payment on Expenses – Non-Payment thereof – File Closed – Second Request for Arbitration – Non-Payment of Expenses – File Closed – ICC Disregarded both Requests – ICC Appoints Sole Arbitrator – Violation of ICC Rules of Arbitration – Objection by Foreign Company – Objection Disregarded by ICC – Arbitration Commenced – Invocation of the Nullity of Arbitration – Requirement to Let Qatari Company Restitute all Amounts Unrightfully Received – Arbitral Award Issued – Foreign Company Ordered to Pay a Certain Sum, Interests and Costs – Action for Annulment – Settlement thereof Dependent on the Interpretation of Clause 9.1 of the Agreement –Termination Should Be on 20 July 2003 not before – Appealed Arbitral Award Upheld but Not with Regard to Interests – Rejection of the Action for Annulment
  • No.2- Supreme Court – Civil Circuit – Challenge No. 33 of 2008 , Civil Cassation – 17 June 2008 ― Agreement to Establish a Branch Office in Doha – Termination of the Agreement – Lapse of One Year following Conclusion Thereof – Arbitration – Issue of an Arbitral Award – Payment of Compensation and Interests – Appeal of the Arbitral Award – Appeal Decision Rejecting Interests – Appeal in Cassation – Challenge – Termination Respected the Terms of the Agreement – Appeal Respondent Duly Notified 90 Days prior to Termination (Yes) – Appealed Decision Reversed and Rejected

Syrian Case Law

  • No.1 - First Civil Court of Appeals – Damascus – Decision No. 863 – 16 December 2009 ― Arbitral Award – Request to grant leave for enforcement of the award – Action for annulment rejected prior to the issue of the New Arbitration Act No. 4 of 2008 – Rejection of the case for incompetence – Arbitral Award not susceptible of appeal – Continuation of the proceedings to grant leave for enforcement of the award – Decision to reject the case not considered as leave for
    enforcement of the arbitral award
  • No.2- Court of Cassation – First Civil Chamber – Damascus – Decision No. 849 – 29 December 2009 ― Conclusion of the arbitration agreement before the New Arbitration Act No. 4 of 2008 came into force – Competence of the Court of Appeals for the examination of arbitration matters – Rules of competence are rules of procedure and not imperative rules – Reversal of the decision

Tunisian Case Law

  • Court of Appeals in Tunis – Case No. 87990 – 24 November 2009 ― Contractor Agreement – Inclusion of an Arbitration Clause for Dispute Settlement – Dispute Settled through Conciliation – Extinguishment of the Rights and Claims Subject Matter thereof – No Revocation of Conciliation even with the Parties' Agreement – Effect of Conciliation on Arbitration Clause – Dispute not Referred to an Arbitral Tribunal in case of Agreement on a Conciliatory Settlement thereof – Arbitral Award Unfounded– Annulment of Arbitral Award Issued by Arbitral Tribunal

U.A.E Case Law

  • Court of Cassation – Dubai – Challenge No. 38/2009 in real estate matters – 4 April 2010 ― Contract for the Sale of Two Towers – Dispute Over the Right of Option Used by the First Defendant to Unilaterally Terminate the Contract – Notice Sent by the Claimant Requesting Compliance with Certain Contractual Obligations – Lawsuit Filed – Plea of Inadmissibility of the Case Due to the Existence of an Arbitration Clause – Dismissal by the Court – Appeal – Dismissal – Recourse in Cassation – Existence of an Arbitration Clause – Plea of Inadmissibility Duly Raised in the First Hearing – Challenge Ungrounded – Challenge Dismissed

Yemeni Case Law

  • Supreme Court, Commercial circuit, Panel A – Commercial Challenge No. 35642 – 16 January 2010 ― Agreement on Arbitration in Equity – Necessity of a Writing and to Define the Exact Subject Matter of the Arbitration – Absence of Any Legal Provision Preventing the Challenge of the Arbitral Award in Arbitration in Equity – Arbitration Agreement Entered Into after a Final Conciliation that Ended the Dispute – Renunciation to Conciliation Once Agreed on Arbitration Regarding the Dispute – The Arbitrators Exceeded their Jurisdiction by Deciding the Nullity of the Conciliation Agreement – Annulment of the Arbitral Award – The Parties Should Resort to the Courts – Dismissal of Cassation

ARBITRATION-RELATED DECISIONS ISSUED BY NON-ARAB STATE COURTS

I. USA Case Law

  1. United States District Court for The Southern District of New York - 3 March 2010 ― The Republic of Iraq on Behalf of the Citizens of the Republic of Iraq Against ABB AG, et al. - Action to Recover Damages Incurring from the Corruption of the United Nations Oil- For- Food Humanitarian Aid-Program – Action Filed Against more than Ninety Defendants – Among the Accused BNP Paribas – The Bank is the Escrow Agent – It Had Concluded a Contract with the United Nations Containing an Arbitration Provision – Iraq Seeks to Benefit from that Provision in Its Capacity as a Third-Party Beneficiary of that Contract – The New York Law States that a Third-Party Beneficiary's Right to Compel Arbitration Depends on the Contracting Parties' Intent – The Court Denies Iraq's Motion to Compel Arbitration
  2. United States District Court for the District of Columbia – Civil Action No. 09-791 (RBW) – 3 February 2011 ― International Trading and Industrial Investment Company (f/k/a/ International Trading and Investment Company) V. Dyncorp Aerospace Technology et al. - Petition for Confirmation of Foreign Arbitral Award Granted – Cross-Motion Denied – Final Judgment in favor of Petitioner – Respondents Ordered to Pay Damages, Costs of Arbitration, Interest and Costs of Present Action – Court Ordered the Case Closed. With memorandum opinion dated 21 january 2011

II. French Case Law

  • Paris Court of Appeal – First Division, First Chamber – Case No. 09/17405 , 4 November 2010 ― Partnership Agreement – Establishment of Licensed Branch in Qatar – Appointment of Qatari Service Agent – Early Termination of Agreement Dispute – Arbitration Clause – Resorting to Arbitration – Issue of Arbitral Award – Appeal against Arbitral Award – Partial Confirmation thereof by Qatar Court of Appeal – Appeal Decision Quashed by Qatar Court of Cassation – Request for Leave for Enforcement before the Court of First Instance of the District of Columbia – Action for Annulment – Null Agreement – Mission Exceeded – Recognition or Enforcement contrary to International Public Policy – Rejection of the Action for Annulment

ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

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

  • INTERNATIONAL TRADING AND INVESTMENT COMPANY (Qatar) v/ DYNCORP AEROSPACE TECHNOLOGY (USA) - 24 th May 2006 ― Foreign Company – Agreement to Establish a Branch Office in Doha – Appointment of Qatari Company as Service Agent pursuant to Law No. 25 of 1990 – Payment of Remuneration of 3% for Contracts Performed in the State of Qatar – Agreement Term: 60 Months – Termination of Agreement by Foreign Company – Dispute – Request of Arbitration – ICC Rules of Conciliation and Arbitration – Appointment of Sole Arbitrator – Failure by Foreign Company to Pay Remuneration Due to Qatari Company on any Contract Performed in Qatar – Agreement not yet Expired – No Valid Reason for the Agreement Termination – Agreement Terminated in accordance with its Terms and Conditions – Obligation to Appoint a Service Agent Cancelled by virtue of New Law No. 13 of 2000 which Replaced Law No. 25 of 1990 – Request for Payment of any Unpaid Remuneration, Interest of 5% per Annum, Costs of Arbitration – No Effect of the Promulgation of New Law No. 13 of 2000 on the Agreement – Wrongful Termination of the Agreement by Foreign Company – Sole Arbitrator Ordered Payment of: Remuneration Due to Qatari Company, Interest of 5% per Annum, Costs of Arbitration – Rejection of all other Claims

II. Awards from the London Court of International Arbitration (LCIA)

  • Case No. 4533 – 20 December 2004 ― Contract for Sale and Purchase of Sugar over a Five Year Period between a Syrian National and a US Company – An Addendum was Added to the Contract Including an Arbitration Clause – Dispute over the Form of the Letter of Credit to be opened by the Claimant – Request for Arbitration Filed – No response from the Respondent – No Appointment of an Arbitrator nor it Lodged Its Share of the Initial Deposit – The Claimant's Request for Interim measures Rejected because the Respondent's Failure or Refusal to Participate in the Arbitration Process does not form a Sufficient Ground – The Claimant's Claim for Damages for Non-Delivery of the goods – Tribunal Orders the Respondent to Pay a Post-Award Interest and the Arbitration Costs to the Claimant

ARBITRATION NEWS

  1. Updates on new and recent laws and cases
  2. Conferences, training and seminars
  3. Books, articles and other publications 
  4. Miscellaneous news about law firms and other institutions in the Arab countries
 
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