International Journal of Arab Arbiration

Volume 3 - No. (3) 2011

Table of Contents


  • 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


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


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


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


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