International Journal of Arab Arbiration

Volume 2 - No. (4) 2010

 
Table of Contents
 
 
INTRODUCTORY NOTE

ARTICLES
  • Study on Conciliation and Arbitration Law in Libya- New provisions laid down in law No.4 for 2010 on Conciliation and Arbitration – by Alkoni Ali Abouda

  • A pilgrimage to Paris: Dallah v. Pakistan – by Ali Malek Q.C. and Dr. Christopher Harris

  • Mediation and Islamic Finance: The Conciliatory Agenda – by Mohamed Madkour
ARBITRATION-RELATED DECISIONS ISSUED BY STATE COURTS IN THE ARAB COUNTRIES

 
Bahraini Case Law
  • Court of Cassation – Challenge No. 109/2001 – 4 February 2002 ― Domestic Arbitration – Arbitrator – Dispute between the Parties over the Appointed Arbitrator Removal of the Arbitrator – Appointment of a Substitute Arbitrator by the President of the First-Instance Court – Appeal of the Appointment Judgement – Failure to Notify the Parties – Right of Defence Violated According to Article 235 of the Code of Civil Procedure – Decision Should Be Rendered by the Court of First Instance with All Its Members After Having Notified All Parties – First-Instance Judgement Upheld Challenge Filed With the Court of Cassation – Misapplication of the Law by the Court of Appeals (Yes) – President of the Court of First Instance Alone Not Empowered to Rule on Such Issues – Removal or Appointment of Arbitrators Falls within the Court of Competent Jurisdiction with All Its Members – Ruling Reversed (Yes)

Egyptian Case Law

  • No.1– Cairo Court of Appeal – Eighth Commercial Circuit – Case No. 24/125 – 28 February 2009 ― Domestic Arbitration – Arbitral Award – Action for Annulment – Plea to the Nullity of the Summons Based on the Lack of Capacity to Bring an Action – Differentiation between Legal Capacity and Legal Representation – Litigation Brought against the Legal Representative of the Company – Legal Representation Valid (Yes) – Plea Rejected (Yes) – Arbitral Award Not Including All Substantive Requirements – Award Not Mentioning the Place of Issuance as Per Article 43/1 of the Arbitration Law of 1994 – Annulment of the Arbitral Award (Yes)

  • No.2– Court of Cassation – Civil and Commercial Circuit – Challenge No. 10503/62 – 26 June 2006 ― Domestic Arbitration – Nature of Arbitration – Dispute Falling or Not Within the Qualification of Arbitration – Dispute Relating to Customs Issues – Dispute Should First Be Referred to Two Arbitrators by Virtue of an Arbitration System Established by the Legislator – Failure of the Two Arbitrators to Settle the Dispute – Dispute Referred to a Tripartite Committee by Virtue of the Same Arbitration System – Decision Rendered by the Committee Fixing the Customs Tariff – Action for Annulment against the Said Decision Filed with the Court of First Instance – Action Declared Inadmissible by the Court – Appeal – Rejection of the Appeal – Confirmation of the First-Instance Ruling – Appeal in Cassation –Tripartite Committee Not Characterized as an Arbitral Tribunal – Decision Rendered by the Committee May Be Appealed before State Courts – State Courts Have General Jurisdiction over Civil and Commercial Disputes – Whether a Ruling is Susceptible of Being Appealed Relates to Public Policy – Appeal in Cassation Accepted (Yes) – Decisions of the Committee Appealable before State Courts (Yes) – Ruling Rendered by the Court of Appeals Reversed (Yes)
Jordanian Case Law
  • No.1– Amman Court of Appeals – Case No. 129/2009 – 11 November 2009 ― Domestic Arbitration– Action for Annulment against an Arbitral Award – Grounds for Annulment Exclusively Laid Down in Article 49 of the Jordanian Arbitration Law – Arbitral Award In Compliance with the Arbitration Agreement – Arbitral Award Rendered within the Time Limit as Agreed upon by the Parties – Action for Annulment Differs from an Appeal against an Arbitral Award – The Annulment Judge Is Prevented from Reviewing the Merits of the Case – Exception – Violation of Public Policy – Public Policy Not Violated – Action for Annulment Rejected (Yes)

  • No.2– Amman Court of Appeals – Case No. 175/2008 – 18 June 2009 ― Arbitral Award – Appeal – Grounds For Appeal – Overstatement of the Arbitration Costs and Clerk's Fees – Appeal Statement Must Include the Name of the Parties to the Arbitration Dispute – The Arbitral Tribunal Cannot Be Named a Party to the Appeal Process – The Arbitral Tribunal Is a Judicial Panel – Appeal Cannot Be Filed Against the Arbitral Tribunal – Appeal Rejected on Procedural Grounds (Yes)
Kuwaiti Case Law
  • Court of First Instance – Case No. 1362/2008 – 28 December 2008 ― Case Filed by Plaintiff against the Arbitrator Requesting the Latter to Refund an Amount Representing the Arbitrator's Fees – Request Based on the Nullity of the Arbitral Award – Request Treated by the Court as an Action for Annulment – Grounds for Annulment Strictly Enumerated by Article 286/3 of the Kuwaiti Code of Civil Procedure – Arbitral Awards Are Not Susceptible of Being Appealed – Grounds for Annulment Are Not Valid Grounds for Appeal of Arbitral Awards – Action for Annulment Rejected (Yes)
Lebanese Case Law
  • No.1– Beirut Court of First Instance – 1 st Chamber – No. 17/72 – 17 May 2010 ― Domestic Arbitration – Arbitration Clause Featuring the Name of the Appointed Arbitrator – Arbitrator's Refusal to Accept the Mission Entrusted to Him – Request to Appoint a Substitute Arbitrator Submitted by Both Parties – Arbitration Clause Waived (No) – Arbitrator Not Appointed Intuitu Personae – Request for Appointment Granted (Yes)

  • No.2– Beirut Court of First Instance – 19 March 2008 ― Domestic Arbitration – Contract Signed by a Debtor before His Bankruptcy - Arbitration Clause Stipulated in the Contract – Bankruptcy of the Debtor – Dispute Relating to or Arising Out of Bankruptcy – Case Filed with the Court of First Instance – Plea to the Non-Jurisdiction of the State Court Based on the Arbitration Clause – Arbitration Clause May Not Be Applied due the Debtor's Bankruptcy – State Courts Have Jurisdiction to Examine the Dispute (Yes) – Plea Rejected (Yes)
Libyan Case Law
  • Supreme Court – Challenge No. 384/47j – 26 February 2005 ― Domestic Arbitration – Arbitration Submission Agreement – Arbitral Award – Action For Annulment Filed with the Court of First Instance – Arbitral Award Exceeding the Limits of the Arbitration Submission Agreement – Objection to the Findings of the Arbitrators – Absence of Authorization Given to the Arbitrators to Act as Amiable Compositeurs – Action Rejected – Appeal – First-Instance Judgement Upheld – The Arbitrators' Decision Not to Be Qualified as an Arbitral Award Rendered in Law but as an Award Rendered in Equity – Arbitration In Equity May Not Be Subject to Challenge According to Article 299 of the Code of Civil Procedure – Appeal in Cassation – Misapplication of the Law by Lower Courts – Dispute to Be Settled According to the Code of Civil Procedure and Not According to Equity – Arbitral Award Null and Void – Reversal of the Appealed Ruling (Yes)
Moroccan Case Law
  • No.1– Court of Appeals – Presidential Orders – Order No. 1011 – 5 May 2010 ― Arbitration Clause Stipulated in the Bylaws of a Company – Dispute –Petitioner Should First Appoint an Arbitrator According to the Bylaws – Respondent Should Be Given a Time Period of Eight (8) Days to Appoint an Arbitrator after Being Notified by Petitioner – Petitioner's Failure to Appoint an Arbitrator – Notice of Dispute Sent to Respondent with no Indication of the Arbitrator Appointed – Notice of Dispute Contradicting the Arbitration Clause – Request Submitted to the President of the Court of Appeals to Appoint an Arbitrator by Virtue of the Arbitration Clause – Request Filed Against Third Parties of the Arbitration Clause – Arbitration Agreement Only Binding upon its Parties – Non-Compliance by Petitioner with the Arbitration Clause – Request Rejected (Yes)

  • No.2– Higher Council – Commercial Chamber – 1 st Division – Decision No. 1094 – 6 October 2004 ― Domestic Arbitration – Arbitration Agreement – Parties' Agreement on the Waiver of the Right to Challenge the Arbitral Award – Subsequent Agreement Concluded between the Parties Not Including Such a Waiver – Request Submitted to the Court of Appeals for Revision of the Arbitral Award – Retraction of the Waiver (Yes) – Time-Limit Requirements to File the Request for Revision Relate to Public Policy – Time Limits Not Respected – Request Rejected (Yes) 

Omani Case Law

  • Court of Cassation – Decision No. 136/2005 – 21 December 2005 ― Contractual Dispute between Two Companies – Contract Stipulating an Arbitration Clause – Claim Filed with the Court of First Instance – Plea to the Inadmissibility of the Case – Claim Rejected (Yes) – Appeal Raised by Claimant Company – Implicit Waiver of the Arbitration Clause (No) – Liquidation of the Claimant Company – Successor Company Invested with Rights of Appellant Company – Successor Company Duly Represented During the Course of the Litigation – First-Instance Judgement Upheld – Appeal by the Successor Company before the Court of Cassation – Court of Appeal's Decision Confirmed – Court of Appeals' Ruling Based on Exhibits Submitted by Both Parties – Violation of the Law (No) – Non TABLE Jurisdiction of the Court of Cassation to Re-Examine Questions of Fact – Control Strictly Limited to the Violation of the Law – Challenge Rejected (Yes). Commentary by Moussa Ben Salem Al Azri
Syrian Case Law
  • No.1– Court of Cassation – Case No. 1003 – Decision No. 814 of 2007 ― Domestic Arbitration – Joint Venture Contract – Arbitration Clause – Dispute – Notice of Arbitration – Absence of Reply to the Notice of Arbitration – Claim Filed with State Courts by Claimant – Arbitration Clause Invoked by Respondent – Claim Dismissed by the Court of First Instance – Appeal Based on the Fact That the Arbitration Clause Would Have Been Waived – Ruling Upheld by the Court of Appeals – Confirmation by the Court of Cassation – No Waiver of the Arbitration Clause – Appeal in Cassation Rejected (Yes)

  • No.2– Court of Cassation – Case No. 312 – Decision No. 159 of 2002 ― Domestic Arbitration – Amiable Compositeur Appointed by Both Parties – Withdrawal of the Arbitrator – State Courts Considered the Arbitration Clause to Have Abated – Lapse of Arbitration in Equity (Yes) – Challenge Filed With the Court of Cassation – Arbitrator Appointed Intuitu Personae – No Possible Appointment of a Substitute Arbitrator – State Courts' Jurisdiction to Examine the Dispute (Yes) – Challenge Rejected (Yes)
Tunisian Case Law
  • Tunis Court of Appeal – Case No. 63638 – 2 December 2008 ― International Arbitration – Institutional Arbitration – International Chamber of Commerce Rules of Arbitration – Arbitral Award Rendered by an ICC Arbitral Tribunal with its Seat in Paris – Tunisian Law applicable to the Merits of the Dispute – Action for Annulment Filed with Tunisian State Courts – Plea with Respect to the Non- Jurisdiction of Tunisian State Courts – Place of Arbitration Located Outside Tunisia – Tunisian Code of Arbitration Related to Procedural Matters Not Adopted – No Jurisdiction of State Courts to Examine Such Action – Action Rejected (Yes)
U.A.E. Case Law
  • No.1– Federal Supreme Court – Abu Dhabi – Challenge No. 137/25 – 10 October 2006 ― International Arbitration – Institutional Arbitration – International Chamber of Commerce Rules of Arbitration – Arbitration Clause Stipulated in a Consulting Agreement – Conciliation Agreement Concluded between the Parties on a Subsequent Date – Dispute – Claim Filed with the Court of First Instance – Plea to the Inadmissibility of the Case – Conciliation Agreement Is Not an Implicit Waiver of Arbitration – Waiver Not Proved – Claim Rejected (Yes) – Appeal – First-Instance Judgement Upheld – Appeal Filed with the Court of Cassation – Misinterpretation by the Court of Appeals of the Main Contract (No) – Specification of the Subject Matter of the Dispute in Details Is Not Required – Agreement over Paris as the Arbitration Seat – No Jurisdiction of the National Courts to Examine the Dispute – Appeal in Cassation Rejected (Yes)

  • No.2– Court of Cassation of Dubai – Challenge No. 214/1998 – 3 January 1999 ― Investment Agreement – Arbitration Clause – Dispute – Recourse to State Courts – Plea with Regard to the Application of the Arbitration Clause – Issues to Be Submitted to Arbitration Strictly Determined by the Parties –Disputes Relating to the Interpretation or Performance of the Contract – Arbitral Award Settling Issues Exceeding the Scope of the Arbitration Clause – Arbitration Clause Excluded Issues Relating to the Termination of the Contract and the Damages Resulting Therefrom – No Jurisdiction of the Arbitral Tribunal to Order Interim or Conservatory or Summary Measures – General Jurisdiction of State Courts to Settle Issues Falling Outside theScope of the Arbitration Clause – Plea Rejected
Yemeni Case Law
  • No.1– Supreme Court – Challenge No. 75 – 14 May 2001 ― Domestic Arbitration – Dispute over the Liquidation of a Partnership – Arbitral Proceedings – Judge Acting as Arbitrator – Arbitral Award – Leave for Enforcement Granted by the Court of First Instance Presided by the Judge Who Examined the Case as Arbitrator – Challenge of the Leave for Enforcement Filed with the Court of First Instance – Annulment of the Enforcement Order – Appeal – First-Instance Judgement Upheld – Appeal against the Court of Appeal's Ruling –Compulsory Withdrawal of the Judge Relates to Public Policy – Violation of the Law (Yes) – Leave for Enforcement and Annulment Thereof Examined by the Same Judge Who Acted as Arbitrator in the Case at Hand –Appeal Granted(Yes) – Referral of the Case to the Court of First Instance to Be Examined with a Different Composition

  • No.2– Supreme Court – Challenge No. 40955 – 9 January 2010 ― Partnership Contract – Arbitration Agreement –Arbitration Agreement Not Only Restricted to Settling Disputes with Regard to Penal and Civil Aspects – Scope of the Arbitration Agreement Extended to Other Aspects of the Partnership Contract Concluded between the Parties – Arbitral Award –Action for Annulment Filed with the Court of First Instance for Insufficient Substantiation – Arbitral Award Confirmed – Appeal Filed with the Commercial Division – First-Instance Judgement Upheld – Cassation – The Ruling of the Commercial Division Vitiated for Insufficient Substantiation – Insufficient Substantiation Considered as a Procedural Issue Subject to the Control of the Commercial Division When Examining the Action for Annulment – Claim Based on the Non-Jurisdiction Ratione Materiae of the Commercial Division to examine the Action for Annulment – Partnership Contracts Falling Under the Scope of Commercial Acts – Claim Rejected(Yes) – Partial Reversal of the Appealed Ruling
ARBITRATION-RELATED DECISIONS ISSUED BY NON-ARAB STATE COURTS

 
I- French Case Law
  • Paris Court of Appeals – Decision No. 8/11583 – 26 November 2009 ― International Arbitration – Institutional Arbitration – Rules of the International Chamber of Commerce – Seat of the Arbitration in Paris – Two Agreements Between the Heirs of a Deceased Saudi Businessman and His Lebanese LawyerRegarding the Assets of the Deceased's Estate – Lawyer Previously Acting as the Agent and Custodian of the Deceased – Criminal Actions Brought by the Heirs in France and Lebanon – Arbitration Brought by the Lawyer for Breach of the Agreements – Pleas by the Heirs Based on the Absence of Jurisdiction and the Existence of a Fraud Vitiating the Entire Contractual Scheme – First Award Confirming Jurisdiction and Second Award Asserting the Validity of the Agreements and Finding in Favour of the Claimant – Action for Annulment Filed with the Court of Appeals in Paris against the Final Award – Request for Stay of Proceedings – Existence of Criminal Proceeding Conducted in France and Abroad – A French Judge is Not Bound by the Result of Such Proceedings – Request Rejected (Yes) – Grounds for Annulment – Violation of International Public Policy Allegation of Fraud – Violation Must Be Flagrant, Effective and Concrete – No Violation Found – Violation of the Principle of Due Process and Equal Treatment of the Parties – Plea Based on Errors and Fraud Committed in the Phase of Document Production – Discretionary Power of the Arbitrator – No Violation Found – Action for Annulment Rejected (Yes). Commentary by Roland Ziadé and Charles- Henri De Taffin  
II- English Case Law
  • No.1– [ 2008] EWHC 1901 (comm.) – QUEEN'S BENCH DIVISION (Commercial Court) – Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan – 1 August 2008 − Saudi Real Estate Company – Trust Signatory – Housing Project Contract – ICC Arbitration Clause with Paris as the Seat of Arbitration – Governments' Role in the Process – Guarantee Signed by the Government – Project did Not Come to Fruition – Trust With no Legal Existence Anymore – ICC Arbitration Started by the Saudi Company Against the Government – Governments' Challenge over Tribunal's Jurisdiction – Tribunal Found jurisdiction Over Government on the Basis of the Application of French Law – New York Convention – Review by English Courts of the Decision on Jurisdiction – No Sufficient Material to Justify Tribunal's Decision That the Government Was a Party to the Arbitration Agreement – Ex Parte Order Granting Leave for Enforcement Set Aside

  • No.2– [2009] EWCA Civ 755 – COURT OF APPEAL, CIVIL DIVISION – Dallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan – 20 July 2009 − Confirmation of the First-Instance Judgement

  • No.3– [2010] UKSC 46 – Supreme Court – Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan – 3 November 2010 − Confirmation of the Court of Appeal's Judgement
ARBITRAL AWARDS RENDERED UNDER THE AUSPICES OF ARBITRATION CENTERS
  1. Awards from the International Court of Arbitration (ICC)
    1. No.1– ICC Case No. 9987 – 26 June 2001 – Partial Award – DALLAH REAL ESTATE AND TOURISM HOLDING COMPANY vs. THE MINISTRY OF RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN − Award on Jurisdiction – Government's Challenge of the Tribunal's Jurisdiction – Trust Signatory of the Disputed Agreement and Not the Government – Government Named Defendant and Found to Be Bound by the Arbitration Agreement in the Agreement Signed between Claimant and the Trust – Dispute Arising out of the Agreement

    2. No.2– ICC Case No. 9987 – Second Partial Award – 19 January 2004 – DALLAH REAL ESTATE AND TOURISM HOLDING COMPANY vs. THE MINISTRY OF RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN − Saudi Law Is the Law Applicable to the Merits of the Case – Usages of Trade – Ministry Is the True Party and Bound by the Disputed Agreement – Plea by Defendant that the Agreement Is Void Because It Provides a Lease of 99 Years – Pleas Rejected – Unlawful Repudiation of the Agreement by Defendant Entailing Its Liability – Claimant Entitled to Compensation

    3. No.3– ICC Case No. 9987 – 23 June 2006 – Final Award – DALLAH REAL ESTATE AND TOURISM HOLDING COMPANY vs. THE MINISTRY OF RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN − Claimant's Claim For Loss of Profits Dismissed – Compensation Amount Determined to be USD 18,907,603 – No interest Further Claimed by Claimant – Claim Considered as Withdrawn – Allocation of Arbitration and Legal Costs

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

    1. Case no. ARB/05/3 – 12 November 2008 − BIT Between Italy and Algeria –Construction of a Dam – Call for Tenders – Contract Concluded between Two Italian Companies and an Algerian Agency Enjoying Public-Power Prerogatives and Relating to the Construction of the Dam – Security Problems Encountered in Performing the Contract – Work Suspended – Contract Cancelled by the Agency by Virtue of an Administrative Decision – Promise to Pay Compensation to the Investor – New Call for Tenders – Arbitral Proceedings Initiated by the Two Italian Companies Against Algeria – Claim Based on the Breach of the BIT – Disputed Acts of the Agency Engage the Algerian State's Responsibility – Acts Attributable to the Algerian State – Cancellation of the Contract Is Not Tantamount to Expropriation – The Italian Companies Not Deprived from Property Rights – Fair and Equitable Treatment of the Investor – Security Measures of Protection Taken by the Algerian State – Algeria Affected by Armed Conflicts During the Performance of the Contract – Protection Provided for the Investor Equivalent to the One Provided to the Nationals – No Breach of International Obligations under the BIT – Claim Rejected (Yes). Commentary by Walid Ben Hamida

  3.  Award from the Institution of Civil Engineers

    1. Award Given in Beirut – October 2007 − Civil Engineering Construction Project to Be Performed in Lebanon – Contract for Work at the Project Concluded between a Contractor and an Employer – Arbitration Clause – Arbitration Seat in Lebanon – Disputes Relating to the Performance of the Contract – Non-Compliance by the Contractor with Contract Requirements – Non-Compliance by Employer with Respect to its Payment Obligations – Failure to Resolve the Disputes Amicably –Contractor's Recourse to Arbitration – Failure to Agree on a Sole Arbitrator –Application Made by Claimant to the Institution of Civil Engineers to Appoint an Arbitrator – Arbitrator Duly Appointed by the President of the Institution – Scope of the Arbitrator's Authority Disputed by Respondent with Regard to the Procedure to Be Applied – Arbitrator Empowered to Rule on Such Dispute – Principle of Competence-Competence – Preliminary Award Issued by the Arbitrator Establishing His Jurisdiction – Erroneous Geographical Data Provided to Claimant – Work Suspended due to Utility Work – Legal Issues Arising in Connection with Property Owners Adjacent to Respondent's Property – Additional Work by Way of a Design Change – Unpaid Contract Balance – Direct and Indirect Costs in the Performance of Extra Work Incurred by Claimant – Delay Damages Because of the Initial Suspension of Work – Respondent Alleging Variation in the Original Contract Quantities – Mistake by Surveyors for Respondent on the Contract Plans – Additional Work Not a Variation in the Original Contract Quantities – Claim By Respondent for Liquidated Damages – Work Substantially Completed on the Prescribed Date – Object of the Contract May Be Used for the Purposes Intended – Claim Denied – Claim for Breaches and Wrong Performance of the Contract – Charge Unsupported by Any Evidence – Claim Denied – Arbitral Award Rendered in Favour of the Claimant. Commentary by Marwan Sakr

  4. Award from the Qatar International Center for Conciliation and Arbitration

    1. Qatar International Center for Conciliation and Arbitration – 22 February 2010 – Case no. 18/2009 ― Institutional Arbitration – Subcontracting Contract – Non- Performance of the Contractual Obligations – Dispute between Contractor and Employer – Arbitration Submission Agreement – Request for Arbitration Filed by Employer for the Delay in the Performance of the Subcontracting Contract – Subsidiary Case Filed by Contractor – Contractor Requesting Employer to Pay Its Financial Obligations – Preliminary Award Appointing an Expert to Evaluate the Amounts Due – Expert's Report Submitted – Both Parties Objected to the Report – Arbitral Tribunal Adopted the Set-Off Made by the Expert – Arbitral Tribunal Empowered to Evaluate the Case' Pieces of Evidence as It Deems Appropriate – Contractor Is Required to Pay the Employer the Amounts Stated in the Expert's Report
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
  • Libyan Law No.4 for 2010 on Arbitration and Conciliation
 
 
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