International Journal of Arab Arbiration

Volume 4 - No. (2) 2012

 
Table of Contents

ARTICLES

  • No. 1- The MALICORP Saga: a Spaghetti Bowl of Proceedings – By Julien Fouret

  • No. 2- The Recourse for Annulment of the Arbitration Clause Included in Administrative Contracts Under Egyptian Law (Presentation and Interpretation of Recent Case Law of the Administrative Judiciary) - By Mohamed Amine Al Mahdi and Mahmoud Fawzi Abdel Bari No. 3- Seoul: A Crossroad for Arbitration between the Middle East and East Asia – By Keon-Hyung Ahn, Robert Gallo and Won-Suk Oh

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

Egyptian Case Law

  • No. 1- Council of State – Cairo Court of Administrative Justice – Sixth Circuit, Contracts and Compensations – Case No. 18628 of 59j – 19 February 2006 – Minister of Civil Aviation "in his Capacity” v. Malicorp Limited Company ― Concession Contract – Termination of Contract – Resorting to Arbitration – Plea by Plaintiff to the Nullity and Ineffectiveness of the Arbitration Clause – Plea Based on the Non Approval of the Competent Minister – Arbitral Tribunal Not Competent – Case Filed Before Council of State's Court of Administrative Justice – Plea to Non Admissibility of the Case Due to the Existence of an Arbitration Clause – Plea by the Plaintiff to Jurisdiction of the Court of Administrative Justice – Public Utility Concession Contract – Characterization as an Administrative Contract or an International Trade Contract – Concession Contract Drafted in Accordance with B.O.T. Models – Concession Contract is an Administrative Contract – Rejection of Plea to Non-Jurisdiction of the Court of Administrative Justice – Court Competent to Settle Dispute – Rejection of the Plea to the Non Admissibility of the Case

  • No. 2- Court of Cassation – Challenge No. 17254 of 52 JS – 19 March 2007 ― Challenge of an Administrative Contract – Public Utility Concession Contract – Necessary Procedures Taken by the Administrative Authority – Necessity to Issue a Decree by Council of Ministers Awarding Concession – Decree Not Issued – Contract Still in Preparatory Phases – Non Disclosure to the Minister of Civil Aviation of Legal Facts Relating to Contract – The Minister Not Well Informed About the Process of Entering Into the Contract – Nullity and Irrelevance of the Minister's Decision Approving Resorting to Arbitration – Contract Not Yet Concluded But Only Preparatory Works – Rejection of the Challenge

  • No. 3- Cairo Court of Appeal – Eighth Commercial Circuit – Case No. 59 of 125j – 18 May 2011 ― Foreign Arbitral Award – Absence of Agreement on the Applicability of Egyptian Law on Arbitration No. 27 of 1994 – Non-Jurisdiction Ratione Materiae of the Egyptian Courts to Examine the Action for Annulment of the Arbitral Award – Action Rejected

Lebanese Case Law

  • Civil Court of Appeal – Beirut – First Chamber – Decision No. 718/2011 – 23 May 2011 ― Arbitral Award – Action for Annulment – Permissible – Equity Arbitration – Special Mandate – Non-Contradiction – Non-Signature by All Members of the Arbitral Tribunal of the Award – Deliberation – Confirmation that Deliberation Took Place – Necessity of Substantiation of the Arbitral Award – Annulment (No) – Exclusive Grounds for Annulment – Arbitral Award Issued Without Arbitration Agreement – Absence of Objection to the Arbitration Proceedings – Acceptance of the Arbitration

Qatari Case Law

  • Court of First Instance – Civil, First Instance, Appeal, Summary – Third Circuit – Doha – Case No. 137/CDFI – Third – 31 May 2011 ― Domestic Arbitral Award – No Reference to the Arbitration Agreement in the Award – Annulment

Syrian Case Law

  •  No. 1- Court of Cassation – First Civil Chamber – Case No. 183 – Decision No. 150 of 2011 – 7 March 2011 ― Arbitral Tribunal Issued a Decision on Settlement of Accounts Between the Parties – Non-existence of an Arbitral Award – Jurisdiction Conferred to the Court Mentioned in Law No. 4 of 2008

  • No. 2- First Civil Court of Appeal – Damascus – Case No. 3 – Decision No. 127 – 16 March 2011 ― Arbitral Award – Request to Grant Leave for Enforcement – Conditions Thereof – Absence of Violation of Syrian Public Policy – Arbitral Award Does Not Conflict With a Ruling Previously Rendered by Syrian Courts Regarding the Subject Matter of the Dispute – Arbitral Award Duly Notified to the Party Who Lost the Case – Arbitral Award Granted Leave for Enforcement

Tunisian Case Law

  • Tunis Court of Appeal – Case No. 12677 – 8 November 2011 ― International Arbitral Award – Request for Leave for Enforcement – Confirmation of the Enforceability of the Award in the Country Where It Was Issued – Not a Condition For Granting Leave For Enforcement – Non-Attachment of an Official Translation of the Arbitral Award at the Time of Submission of Said Request – Translation Made by Sworn Translator and Attached to the Original Award – Violation of the Right of Defence (No) – Compliance with the Principle of Due Process (Yes) – Violation of the Rules of Tunisian Public Policy Through the Reliance on the Testimony of Unreliable Witnesses (No) – Witnesses' Testimony Not Falling Within the Matters Relating to Public Policy – Issue of the Arbitral Award Outside the Legal Time Limit (No) – Rectification Award Issued Clarifying and Determining the Correct Arbitration Time Limit – Rectification Award Is an Addendum to the Original Arbitral Award and an Integral Part Thereof – Examination of an Action for the Annulment of the Rectification Award Before Swiss Courts – Action Rejected – Arbitral Award Granted Leave for Enforcement
UAE Case Law
  •  Dubai Court of Cassation – Civil Challenge No. 103 of 2011 – 20 November 2011 ― Arbitral Award – Contains a Copy of the Arbitration Agreement (Yes) – One of the Fundamental Particulars – The Arbitral Award is Valid

 ARBITRATION-RELATED DECISIONS ISSUED BY NON-ARAB STATE COURTS

French Case Law

  • No. 1- Paris Court of Appeals – Decision No. 06/17901 – 19 June 2008 – Government of the Arab Republic of Egypt v. Malicorp Ltd. ― International Arbitration – Dispute Over the Recognition of the Award – Recognition Order by the Paris Tribunal of First Instance – Challenge of the Recognition Order Before the French Judiciary – Due Process – Non-Compliance with the Principle of Adversarial Process (Article 1502-4 CCP) – Reference to Provisions (Articles 120, 121 and 142 CCP) Not Pleaded By the Parties – Irregularity Affecting the Composition of the Arbitral Tribunal (Article 1502-2 CCP) – Contravention of the International Public Policy (Article 1502-5 CCP) – Compensation Under Article 700 CCP – Award Not Recognizable or Enforceable in France – Annulment by the Court of Appeals of the Recognition Order for Having Enforced an Award that Could Not Be Recognized in France for Non-Compliance with the Principle of Adversarial Process

  • No. 2- Court of Cassation – Decision No. 08-16858 09-12399 – 23 June 2010 – Government of the Arab Republic of Egypt v. Malicorp Ltd. ― International Arbitration – Dispute over the Recognition of the Award – Challenge of the Court of Appeals' Decision on the Grounds That the Rule (Mistake) Subject to the Non-Invoked Provisions Was Pleaded by the Parties – Dismissal of the Challenge by the Court of Cassation on the Grounds That the Provisions Were Not Pleaded and the Due Process Not Preserved – Inadmissibility of a Challenge That Did Not Conform With the Formalities Required for Admissibility Under Article 611-1 CCP – Admissibility of Challenge if Notification Was Made Under Article 7.2 of EC Regulation No. 1648/2000
 ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS

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

  • ICC Case No. 16655/EC/ND – 23 December 2011 ― Institutional Arbitration – Arbitration Clause in a Distribution Agreement Between an Emirati Sole Proprietorship and a French SAS – Conversion of the Sole Proprietorship to a Limited Liability Prior to the Proceedings – Challenge of the Arbitrator's Jurisdiction to Hear Disputes From the Claimant for Change of Legal Identity (Conversion from Sole Proprietorship to Limited Liability) – Consequences of the Conversion to a Limited Liability Under the Emirati Law (Transfer of Assets) – Formalities Required for the Transfer of Assets Under the Emirati Law and in Practice (Relaxed Practice) – Lawful Conversion of the Sole Proprietorship to a Limited Liability With due Transfer Of All Assets, Rights and Liabilities Including the Distribution Agreement and Relevant Arbitration Clause – Admissibility of the Limited Liability as Claimant in the Arbitration Proceedings – Law Applicable to the Dispute: Claimant's Request to Apply the Emirati Law to the Agreement as the Contract Was Implemented in the UAE (Request Dismissed) –Application of the French Law to the Dispute For Being the Lex Contractus – Exceptional Application of the Emirati Law in the Event of Mandatory UAE Regulations Such As "Agency Law of 1981” – Determination of the Parties' Contractual Relationship (Agency Or Distributorship) – Parties' Intent to Enter Into A Distributorship – Claimant Not Qualified As An Agent Under Article L. 134-12 (1) of the French Commercial Code – French Law Concept of "Mandat d'Intérκt Commun” Not Applicable – Claimant Not Qualified As Agent Under the Mandatory Protective Emirati Law – Claimant Not Entitled to Compensation For Unlawful Termination Of An Agency Agreement Under Article L. 134-12 (1) Of the French Commercial Code – Claimant's Claim for Compensation for Termination of An Alleged Agency Could Have Been Time- Barred Under Article L. 134-12 (2) Of the French Commercial Code (Obiter Dictum) – Exclusive Distributorship – No Breach By the Respondent Of Exclusivity Clause Since Claimant Lost Its Exclusivity Upon Termination Notice As Per the Agreement – Claimant's Request For Compensation For Unlawful Termination Of An Established Commercial Relationship Under Article 442-6-I-5 Of the French Commercial Code – Legal Qualification Of the Compensation for Unlawful Termination Of An Exclusive Distributorship Under Article 442-6-I-5 Of the French Commercial Code (Tortuous Or Contractual) – Arbitrator's Jurisdiction To Decide On Tortuous Issues Under Article 442-6-I-5 Of the French Commercial Code – Broad Terms Of the Arbitration Clause Which Include Tortuous Issues Arising Out Of the Contract – Applicability Of Article 442-6-I-5 Of the French Commercial Code On International Commercial Relationships – Respondent's Brutal Termination Of the Exclusive Commercial Relationship (Insufficient Notice) Under Article 442-6-I-5 Of the French Commercial Code (Compensation)- Respondent's Alleged Claimant's Disorganization By Hiring Away Claimant's Former Employees (No). Commentary by Judith Haroche

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

  • ICSID Case No. ARB/08/18 – 7 February 2011 –Malicorp Limited v. the Arab Republic of Egypt ― A Build, Operate, Transfer (B.O.T.) Type Concession Contract Between Egypt and a Foreign Investor – The Investor Breaches the Contract by Failing to Provide a Bank Guarantee and to Establish an Egyptian Company – Notice of Termination of Contract Sent to Investor – Rescission of Contract – Arbitration Initiated by Investor Before the Cairo Regional Centre for International Commercial Arbitration (CRCICA) Claiming Damages for the Losses Sustained Due to Alleged Wrongful Termination of the Contract – Allegation by Respondents that Contract Was Null and Void Due to the Production of a Falsified Extract From the Companies Register – Egypt Was the Victim of a Fundamental Error in Signing the Contract – CRCICA Award Dismissing Claimant's Request for Damages – Claimant Filed a Request for Arbitration Against Egypt before the ICSID – Allegation that Egypt Violated its Obligations Under the Agreement of 11 June 1975 Between the United Kingdom and Egypt for the Promotion and Protection of Investments – Further Allegation of Violation by Egypt of the ICSID Convention – Egypt Claims that the Arbitral Tribunal Has No Jurisdiction – Principle of Competenz-Competenz – Arbitral Tribunal Rules That It Has Jurisdiction – Claimant's Request for Damages Due to Expropriation – Violation of the Bilateral Investment Treaty by the Host State (No) – Termination of the Contract Justified in Fact and in Law – Absence of Any Expropriatory Measure Under International Law – Failure of the Claimant to Take the Legal, Financial and Technical Steps to Launch the Project – Arbitration Case Rejected

ARBITRATION NEWS

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