International Journal of Arab Arbiration

Volume 4 - No. (3) 2012

 
Table of Contents
 

ARTICLES

  • The New Saudi Law on Arbitration: Presentation and Commentary – By Mohamed Al Hoshan
  • The New Saudi Arbitration Act: A Comprehensive and Article-by-Article Review – by the Law Firm of Salah Al-Hejailan

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

Egyptian Case Law

  • No. 1- Cairo Court of Appeal – Seventh Commercial Circuit – Case No. 50/128j – 4 January 2012 ― Arbitration Under the Rules of the Housing Cooperatives Union – Autonomy of the Will of the Parties to Arbitration – Binding Arbitration Agreement – Issuance of an Arbitral Award – Difference Between an Arbitral Award and a State Court Decision With Regard to the Action for Annulment – Necessity to Indicate the Defect Vitiating the Challenged Award and the Interest Worth Protecting – Incomplete Submissions Not a Ground for Annulment of the Award If Completing Them Through Other Documents in the Proceedings is Possible – The Arbitral Award is Valid
  • No. 2- Cairo Court of Appeal – Seventh Commercial Circuit – Case No. 43/128j – 2 November 2011 ― Scope of the Arbitration Agreement Determined by the Claims Exchanged Between the Parties to Arbitration – Arbitral Tribunal Not Exceeding Its Mission – Courts Have No Power to Examine the Validity of the Reasoning of an Arbitral Award – Review Limited to the Existence of a Reasoning – Power of the Courts to Examine Whether the Arbitral Tribunal Effectively Reviewed the Claims and Evidence (Yes) – Appeal Rejected
  • No. 3- Cairo Court of Appeal – 62nd Commercial Circuit – Case No. 36/127j –2 November 2011 ― Arbitration Clause in a Works Contract – Determination of the Competent Arbitral Institution – Substantive Applicable Law Not Specified in the Contract – Application of the Substantive Law Most Relevant to the Dispute – Law of the Country Where the Contract Was Concluded, or Law of the Country of the Nationality of the Parties, or Law of the Place of Arbitration or Enforcement of the Award – Dispute Relating Mostly to Egypt – Application of the Egyptian Substantive Law – Request to Set Aside the Arbitral Award for Impartiality of the Arbitral Tribunal – Request Dismissed for Lack of Evidence

Jordanian Case Law

  • Jordanian Court of Cassation – Case No. 920/2011 – 19 April 2011 ― An Arbitral Award Deciding an Advance on Arbitration Costs – Challenge of the Arbitral Award for Violating Article 41/D of the Jordanian Arbitration Act in Relation to the Evaluation of the Arbitration Costs – Court of Appeal Dismissing the Challenge on Procedural Grounds Without Examining the Ground Relating to the Evaluation of the Arbitration Costs – Challenge of the Court of Appeal's Decision for Failing to Examine the Abovementioned Ground – Reversal of the Challenged Decision

Lebanese Case Law

  • No. 1- Civil Court of Appeal – Beirut – First Chamber – Decision No. 227/2012 – 15 February 2012 ― Challenge of an Arbitrator for Lack of Impartiality – Challenge Dismissed by the Court of First Instance – Decision Not Subject to Any Means of Recourse – Exceptional Challenge by Way of Nullity Appeal – Requirements for the Admissibility of the Nullity Appeal – Decision Must Be Substantially and Visibly Vitiated or Must Contravene an Essential Procedural Principle – Nullity Appeal Inadmissible for Not Satisfying the Requirements Thereof
  • No. 2- Civil Court of Appeal – Beirut – First Chamber – Decision No. 59/2012 – 16 January 2012 ― Domestic Arbitration – Arbitration Ex Aequo Et Bono – May Not Be Inferred from the Mere Waiver of the Right to Challenge the Award – Principle of Adversarial Process – Requirements – Award Based on the Documents Submitted by the Parties – Request to Set Aside the Award Dismissed

Syrian Case Law

  • No. 1- Court of Appeal – Damascus – First Civil Chamber – Decision No. 28 – 20 January 2011 ― Action to Set Aside an Arbitral Award – Fifth Arbitrator Not Present – One Member of the Arbitral Tribunal Not Having Participated in the Deliberations Thereof – Prior Refusal by the Courts to Enforce the Arbitral Award – Examination of the Request for Setting Aside of Said Arbitral Award No Longer Necessary
  • No.2- Court of Appeal – Damascus – First Civil Chamber – Decision No. 51 – 2 February 2011 ― Arbitration Clause in a Real Estate Sales Agreement –Claim for Rescission for Breach of Contract – Dispute with Regard to the Nature of a Money Transfer Whether It Is a Deposit or a Payment – Arbitration –An Arbitral Award – Action for Annulment of the Award for Exceeding the Parties' Claims – Award Set Aside for Having Been Issued Ultra Petita

Yemini Case Law

  • No. 1- Supreme Court – Commercial Circuit – Panel (B) – Challenge No. 43949 – 20 March 2011 ― Request for the Setting Aside of an Arbitral Award Before the Commercial Courts – Challenge of the Commercial Courts' Ratione Materiae Jurisdiction – Setting Aside of Arbitral Awards Falls Under the Exclusive Jurisdiction of Civil Courts – Award Relating to a Commercial Activity as the Disputed Project Aims to Make a Profit – Competence of the Commercial Courts to Rule on the Request – Dismissal of the Challenge
  • No. 2- Supreme Court – Commercial Circuit – Panel (B) – Commercial Challenge No. 43418 – 13 February 2011 ― Arbitral Award – Arbitrator Not Impartial As He Was Previously One of the Parties' Attorneys – Award Set Aside by the Division – Challenge of the Division's Decision Before the Court of Cassation for Lack of Proper Substantiation – Decision Sufficiently Substantiated for Stating the Reasons for the Setting Aside of the Award – Challenge Dismissed

ARBITRATION-RELATED DECISIONS ISSUED BY NON-ARAB STATE COURTS

French Case Law

  • Paris Court of Appeal – 1st Section – 1st Chamber – Decision RG No. 10/16525 dated 24 November 2011 – E.G.P.G. v. NATGAS ― Institutional Arbitration (CRCICA) – Arbitration Agreement in a Contract for Natural Gas Supply Between an Egyptian Public Institution and an Egyptian Corporation – Loans Contracted by the Egyptian Corporation to Finance the Contract – Amendment to the Parity of the Egyptian Pound by the Egyptian Authorities Which Increased the Financial Charges for the Egyptian Corporation – Refusal by the Public Institution to Bear the Additional Costs – Request for Arbitration Filed With the CRCICA Against the Public Institution – Award Ordering the Egyptian Public Institution to Compensate the Egyptian Corporation for the Additional Costs Incurred – Order of Enforcement (Exequatur) by the Paris Tribunal de Grande Instance – Challenge of the Order of Enforcement Before the Paris Court of Appeal – Invalidity of the Arbitration Clause for Violating the Mandatory Rules of the Egyptian Arbitration Law Applicable to Domestic Arbitration – Contravention by the Arbitral Tribunal of the Principle of Adversarial Process and Right to Defence – Violation of the Principle of International Public Policy Pertaining to the Privity of Contracts – Award Not to Be Recognized in France for Having Been Set Aside by the Egyptian Judiciary – Challenge Dismissed by the Court of Appeal – French International Arbitration Law Applicable Under Article VII of the New York Convention for Being More Favourable to Arbitration than Egyptian Arbitration Law – Setting Aside of a Foreign Award in the Country of Origin Not a Cause for Refusal to Recognize it in France – Regularity of an Arbitration Agreement Determined by Reference to the Applicable Rules in the Country Where Recognition is Sought – Will of the Parties Sufficient to Validate an Arbitration Agreement and Should Be Subtracted from the Ambit of National Laws – No Duty for the Arbitrators to Submit Their Reasoning to an Adversarial Discussion. Commentary by Denis Bensaude

USA Case Law

  • United States Court of Appeals (NYC), 2nd Circuit, Summary Order, 472 Federal Appeals No. 11 – 28 of March 2012 – Republic of Iraq v. BNP Paribas USA ― Arbitration Clause in a Contract Between the USA Government and BNP Paris – Motion to Compel Arbitration Submitted before the US District Court by the Republic of Iraq as a Third Party Beneficiary – Motion Denied by Order of the US District Court – Challenge of the Order Before the Court of Appeals – Right to Invoke the Arbitration Agreement (Arbitrability) – Jurisdiction of the Arbitrator to Make a Determination Thereon Depends on the Parties' Intent to Provide Such a Right to Third Parties – Language of the Arbitration Agreement Focusing Only on the Parties and Thus Not Vesting Third Parties With the Right to Invoke it – No Jurisdiction For the Arbitrator to Rule on his Own Jurisdiction Regarding Third Parties – No Right For the Republic of Iraq to Invoke the Arbitration Clause – Appeal Rejected and Order of the US District Court Affirmed. Commentary by Caline Mouawad and Kana Ellis Caplan

ARBITRATION NEWS

  1. Updates on new and recent laws and cases
  2. Conferences, training and seminars
  3. Miscellaneous news about law firms and other institutions
  4. Books, Articles and Other Publications
TEXTS/ LAWS / REPORTS/DOCUMENTS
  •  New Saudi Arbitration Act issued on 16 April 2012
 
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