International Journal of Arab Arbiration

Volume 6 - No. (2) 2014

 
Table of Contents

ARTICLES

  • KLRCA’s New I-Arbitration Rules: Islamic Finance in the Global Commercial Arena - By Datuk Sundra Rajoo
  • The Current State of Mediation in the Middle East - By Lina Hakim

ARBITRATION-RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS

KSA Case Law

  • Diwan Al Mazalim (Board of Grievances) – Commercial Circuit – Undated -  Arbitration Agreement – Arbitration Proceedings – Appointed Arbitrator and Party in the Same Board of Directors of a Company – Challenge Before the Board of Grievances in Saudi Arabia – Grounds to Challenge an Arbitrator Being the Same as those for the Challenge of Judges – The Arbitrator's  Membership in the Same Board of Directors as One of the Parties not a Valid Ground to Challenge Judges – Thus Not a Valid Ground to Challenge Arbitrators – Challenge Dismissed.

Lebanese Case Law

  • Court of Appeal in Beirut – First Chamber – Decision No. 504/2012 – dated 28 March 2012 - Arbitration Agreement – Nominative Appointment of the Arbitrator Therein – Provision for the Appointment of Another Arbitrator in Case of Conflict – Conflict as to the Appointment of the Arbitrator – Recourse to the Court of First Instance in Beirut for the Appointment under Article 864 of the Lebanese Code of Civil Procedure (CCP) – Appointment of an Arbitrator Accordingly – Issuance of a Final Award – Request for the Setting Aside of the Award Before the Court of Appeal in Beirut – The Award Being Purportedly Null for Having Been Rendered by an Arbitrator not Appointed as per the Parties’ Agreement – Arbitration Agreement to be Interpreted as Giving the Lebanese Courts the Power to Appoint the Arbitrator Under Article 864 CCP in Case of Conflict – Challenge Dismissed.

Syrian Case Law

  • No. 1 - Court of Appeal in Damascus – First Civil Chamber – Decision No. 27 – 30 April 2012 - Arbitration Agreement – Appointment of an Arbitrator – Arbitrator Did not Perform his Duties for Over 30 Days of Appointment – Challenge of the Arbitrator Before the Court of Appeal – Arbitrator’s Duty to Resign Failing Which he Should Be Removed – The Replacement Arbitrator Should be Appointment as per the Same Procedure for the Appointment of the Replaced One.

  • No. 2-Court of Appeal in Damascus – First Civil Chamber – Decision No. 88 – 19 December 2012 -  Arbitral Award – Request for an Order of Enforcement Before the Court of Appeal – Award not Issued in the Name of the People of the Arab Republic of Syria – Requirement that Relates to Public Policy – Award Having Contravened to such Requirement – Award not Enforceable in Syria – Request Dismissed.

UAE Case Law

  • No. 1-Court of Cassation in Abu Dhabi – Commercial Challenge No. 679/2010 – Audience of 16 June 2011 - Request to Enforce a Foreign Arbitral Award in the UAE Before the Court of First Instance – Arbitration Admissible Only Where the Emirati Courts Do not Have Jurisdiction to Rule on the Case – Emirati Courts Competent to Rule on the Dispute – Request for Enforcement Dismissed by the Court of First Instance Under Article 235 of the Code of Civil Procedure – First Instance Decision Confirmed by the Court of Appeal – Challenge of the Appeal Decision Before the Court of Cassation in Abu Dhabi – UAE is Party to the New York Convention of 1958 – The Convention Is Part of the UAE Legal System and Applicable Law of the State Even if it Contravenes to Previous Laws – Provisions of the New York Convention Applicable to the Enforcement of Foreign Arbitral Awards in the UAE – UAE Bound to Enforce Foreign Arbitral Awards that Comply with the New York Convention – UAE Precluded from Imposing Stricter Rules for the Enforcement of Foreign Arbitral Award – Article 235 of the Code of Civil Procedure Being Stricter than the Provisions of the New York Convention – Such Article Not Applicable to the Enforcement of Foreign Arbitral Awards – Court of Appeal’s Decision to Apply Such Article Contravenes to the New York Convention – Annulment of the Decision of the Court of Appeal.

  • No. 2- Court of Appeal in Dubai – Commercial Appeal No. 126/2011 – Audience of 22 February 2012 - Foreign Arbitral Awards – Request to Order the Enforcement Thereof Before the Court of First Instance in Dubai – Order of Enforcement Granted – Challenge of the Court of First Instance Decision Before the Court of Appeal for Misapplication of the Law – Appellant Purportedly not a Party to the Underlying Arbitration Agreement – Requirements of Article 216 of the Code of Civil Procedural and the Provisions of the New York Convention – State Courts Have a Supervisory Role Over the Arbitral Award Subject to Enforcement – State Courts Required to Review the Validity of the Arbitration Agreement – Parties not Having Provided an Original Copy of the Arbitration Agreement – Appellant not Having Otherwise Proven that it Was not Party to the Arbitration Agreement – Arbitral Award Duly Enforceable in the UAE – Challenge Dismissed.



ARBITRATION-RELATED DECISIONS ISSUED BY STATE COURTS IN NON-ARAB JURISDICTIONS


Swiss Case Law

  • First Civil Law Court – Judgment of 17 January 2013 - Representation Agreement Between a French Company and an Iraqi Representative – ICC Arbitration – Agreement Concluded in 2000 when Iraq Was Inflicted a Commercial Embargo by the UN Security Council.

  • Switzerland Implementing the Embargo – Arbitral Proceedings in Lausanne – Claims by the French Company for the Nullity of the Representation Agreement for Contravention to International Public Policy – Iraqi Representative’s Allegation that the French Company is Estopped from Raising the Nullity of the Representation – Iraqi Representative Having Partially Performed it – Representation Agreement Expressly Conditional Upon the Lifting of the Embargo – Representation Agreement Implemented after the Lifting of the Embargo – Representation Agreement not Contrary to International Public Policy and to the UN Resolutions – Claims for the Nullity of the Arbitration Agreement Dismissed – Representative’s allegations of Estoppel also Dismissed – Reduction of the Representation Commission – Challenge Dismissed and Award Confirmed Commentary by Matthias Scherer.
USA Case Law

  • No. 1 - United States District Court – Southern District of New York – Decision Dated 4 March 2013 - ABU DHABI INV. AUTH. V. CITIGROUP, INC.- Contract Between the Abu Dhabi Investment Authority (ADIA) and a Delaware Corporation, Citigroup, Inc. (Citigroup) – Arbitration Agreement Under the American Arbitration Association Rules – Conflict Between the Parties as to the Implementation of the Contract – Filing for Arbitration by ADIA Against Citigroup – Request for the Rescission of the Contract for Alleged Violation of Common Law, Fraud and Breach of Good Faith and Fiduciary Duties – ADIA Requesting the Tribunal to Apply the Abu Dhabi Laws for Tortuous Claims Rather than the Law of the Contract (New York) – ADIA’s Further Request for US Discovery Proceedings for the Disclosure of Over Half a Million Pages of Documents – Tribunal Ruling for the New York Law to Apply on Tortuous Claims Since it Has more Connection with the Dispute and the Parties – Arbitral Tribunal Partially Granting Discovery to ADIA – Final Award Dismissing ADIA Claims in Favor of Citigroup – Challenge of the Award by ADIA Before the Southern District Court – Award Purportedly Violating the Federal Arbitration Act (FAA) in "Manifest Disregard of the Law” for Having Applied the New York Law on Tortuous Claims – Award Rendered in Violation of ADIA’s Right to Present its Case Under the FAA and the New York Convention for Denying it Access to Documents by Way of Discovery – ADIA’s Challenge Dismissed by the Southern Court – Manifest Disregard of the Law under the FAA Requiring a Clear Proof that the Arbitrator "Intentionally Defied the Law” – Requirement that the Law be Clearly and Explicitly Applicable to the Matter – Cumulative Proof that the Arbitrator Knew About the Law and Intentionally Disregarded it – Tribunal’s Discretion as to the Evidentiary Matters Pertaining to Discovery – None of these requirements fulfilled – Challenge Dismissed.

  • No. 2-United States Court of Appeals for the Second Circuit – Decision dated 19 February 2014 - ADIA’s Challenge of the U.S. District Court Decision Before the Court of Appeals – Purported Violation of the FAA and the New York Convention for Refusing to Vacate the Award – Challenge Dismissed by the Court of Appeals Confirming the District Court’s Decision. Commentary by Jennifer Kirby.


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