International Journal of Arab Arbiration

Volume 1 - No. (1) 2009

 
Table of Contents

DOCTRINE

  • The new Algerian arbitration law (By Dr. Abdel Hamid El Ahdab)
  • The Saudi commercial courts' positions on the implementation of the arbitration clause (By Dr. Mohammad Al-Hoshan)
  • GCC Unified Arbitration Draft Law (By Dr. Ahmed Sheta)
  • Claims, disputes and arbitration by virtue of the "Conditions of Contract for Works of Civil Engineering Construction” (By Dr. Jamal Al-Dine Nassar)
  • The new arbitration law of the "Dubai International Financial Centre” (By Claudine Helou Esq.)

ARAB JURISPRUDENCE

Algerian Case Law

  • No. 1: The enforcement of the arbitral award by the Courts is a violation of the jurisdictional rules – Cassation. Commentary by Dr. Mostefa Trari –Tani

Egyptian Case Law

  • No. 1: An expert should be appointed to examine the papers of the case and the contract concluded between the parties in dispute in order to reveal the scope of enforcing the contract's tridents, the party in violation and the damage suffered by the other party. Commentary by Judge Borhan Amrallah
  • No. 2: The New York Convention is part of the laws of the countries and should be applied even if it contradicts national arbitration laws
  • No. 3: The challenge or defense of a party with no interest is not accepted
  • No. 4: Arbitration law does not condition the representation of parties by lawyers
  • No. 5: An award is null when lacking motivations and parties have not agreed to absence of motivations therein
  • No. 6: Arbitration regarding the validity of a contract on real estate rights is not accepted, unless the page of the real estate is published in the land register; hence the dispute cannot be subject to arbitration and the arbitral award is null and void
  • No. 7: A legally formal arbitration agreement is a prerequisite to render an arbitral award; otherwise the award is null
  • No. 8: An arbitral award that settles a case not included in the arbitration agreement is null and void
  • No. 9: The arbitral award that violates public policy is null and void
  • No. 10: The arbitration clause in a contract is null and void if it is vague and does not specify the method for nominating the arbitrators
  • No. 11: It is not mandatory to render arbitral awards in the name of people, as it is required in regular judgments
  • No. 12: The arbitral award that does not include the arbitration agreement is null and void
  • No. 13: Lack of motivation in the award leads to its annulment unless agreed otherwise by the parties
  • No. 14: A null arbitration clause leads to the annulment of the award
  • No. 15: If the arbitrator's nationality is set as a condition then it should be satisfied, otherwise the parties are free to mention it or not
  • No. 16: The appeal filed against the arbitral award should be rejected because the review for annulment is not the same as for an appeal

Jordanian Case Law

  • No. 1: The contract that violates public policy is null and will result in the annulment of the arbitral award. Commentary by Lawyer Nazmi Bakir
  • No. 2: The decision to appoint the arbitrator is not subject to recourse
  • No. 3: Examining whether the applicable Jordanian law permits consideration of the facts and documents filed in annulment action

Kuwaiti Case Law

  • No 1: The contract that violates public policy is null and will result in the annulment of the arbitral award
  • No 2: It is permitted to appoint the father of the claimant in an arbitration to act as arbitrator
  • No 3: The appointment of an arbitrator cannot be subject to annulment. Any other issue in dispute relating to the arbitrator's appointment or its rejection can be annulled

Lebanese Case Law

  • No. 1: The arbitration clause provided in one of the contracts relating to one single economic transaction enables the arbitral tribunal to settle all claims concerning the contracts. Commentaries by: 1) Professor Fayez Hage- Chahine, 2) Professor Michel Soumrani, 3) Claudine Helou Esq.
  • No. 2: The arbitration clause empowers the arbitrator to settle the issue of interpreting the contract or implementing it – the parties' allegations relating to the grounds for annulment increase the arbitrator's powers
  • No. 3: Arbitration in equity shall be established through conclusive evidence and be presumed. Commentary by: Ghada Ibrahim Esq..
  • No. 4: The resignation of an arbitrator terminates the arbitration. Commentary by Dr. Ali Rahal
  • No. 5: Constitution of the arbitral tribunal – accepting the arbitration clause renouncement to alleging error
  • No. 6: An arbitrator giving an opinion in advance, whether or not a mere statement, will not be recused in arbitral proceedings
  • No. 7: The liquidator should refrain from submitting to arbitration the issues he/she is required to liquidate
  • No. 8: Arbitrators' fees neither fall within the scope of the dispute nor within the control of the Court
  • No. 9: Controlling the motivation of the arbitral award does not fall within the scope of a recourse for annulment
  • No. 10: A criminal action does not automatically stay arbitral procedures
  • No. 11: A preliminary award can be set aside in the same manner as a final award
  • No. 12: The voluntary enforcement of the arbitral award entails the acceptance of the award
  • No. 13: Arbitration becomes international if the contract stipulates the transfer of goods, services and capital through the frontiers
  • No. 14: The fact that a party does not attend an arbitral hearing while being duly notified does not render the subsequent award null and void
  • No. 15: The failure of the arbitral tribunal to hear a witness does not violate the rights of defense
  • No. 16: The arbitral award cannot be subject to cassation in equity arbitration unless the Court of Appeals annuls the award
  • No. 17: The absence of an arbitration clause and its invalidity justify recourse against the judgment appointing the arbitrator

Moroccan Case Law

  • No. 1: The adoption by the presiding arbitrator of the opinion of another arbitrator is at the core of his mission and does not affect his impartiality
  • No. 2: Resorting to state courts is considered as a waiver of arbitration

Oman Case Law

  • No. 1: The arbitral condition is stipulated in the contract as any other condition, and is not independent from the contract. Commentary by Dr. Abdullah El Saidi
  • No. 2: The claim and arbitral jurisdiction are not accepted if the respondent challenged the arbitral clause before any claim or defense
  • No. 3: The arbitral tribunal rules on its jurisdiction and the arbitral clause is independent from the original contract – The transfer of the arbitral clause is permissible from one government authority to another
  • No. 4: The judiciary controls the validity of the arbitration clause and can declare its lack of jurisdiction in order to proceed with the arbitration claim
  • No. 5: Arbitration is binding on its parties and cannot be extended to third persons

Qatar Case Law

  • No. 1: If an arbitration clause is valid, the arbitration agreement shall prevent the state courts from hearing the case
  • No. 2: It is permissible to choose an arbitrator who does not hold a Qatari nationality
  • No. 3: In order for the foreign arbitral award to be enforced, it should have been granted res judicata effect pursuant to the law of the country in which it was issued
  • No. 4: The jurisdiction of the arbitrator is limited to the scope of the contract

Syrian Case Law

  • No. 1: The appointment of the arbitrator in the arbitration clause makes the fate of the arbitration depending on him
  • No. 2: If both parties appear before the tribunal after the expiration of the arbitration time limit, it implies the approval of an extension of the arbitration time limit
  • No. 3: Rendering an arbitral award in a public library violates the principle of confidentiality
  • No. 4: If a challenge of an arbitrator was requested, the arbitral proceeding should be discontinued until the challenge is ruled upon

Tunisian Case Law

  • Summary of various cases

U.A.E. Case Law

  • No. 1: The judiciary shall settle the dispute if the respondent appeared in the first hearing and did not claim on the basis the arbitration agreement. Commentary by Dr. Ibrahim Hassan Al Mulla
  • No. 2: An arbitral award rendered abroad by a foreign arbitrator – Formel conditions before the court for the enforcement of the award
  • No. 3: The issuance of an award by a tribunal with no jurisdiction leads to its annulment
  • No. 4: The court shall not scrutinize the merits of the award nor its compatibility with the Law when granting an exequatur of the arbitral award
  • No. 5: The appointing authority shall consult both parties prior to appointing an arbitrator, otherwise the appointment falls within the power of the judiciary
  • No. 6: An arbitral award has a res judicata effect that bans any recourse before the judiciary to settle the same dispute when the recourse has the same subject matter or grounds unless a judgment has been rendered rejecting the recognition of the award
  • No. 7: The refusal to sign the arbitration agreement does not affect or lead to the annulment of the award
  • No. 8: An award that settles the existence of an arbitration agreement is subject to an independent recourse for annulment
  • Summary of judgments issued by the Dubai Court of Cassation

Yemeni Case Law

  • No. 1: If the issuance of the arbitral award at the date of appointment of the arbitrator is correct, then it is not a ground for setting aside
  • No. 2: The Court of Appeals examining the request for annulment of the arbitral award is not a court reviewing the merits and its jurisdiction is limted to the grounds for setting aside the award
  • No. 3: Extension of the arbitration period by proceeding the claim
  • No. 4: The state court may only review the grounds of annulment as exclusively specified by the legislator

ARBITRATION NEWS

TEXT OF THE LAWS

  • The new Algerian arbitration law published in the Official Gazette
  • Draft of the Unified Law for Arbitration In the States of the Gulf Cooperation Council
  • Arbitration Law - DIFC Law No.1 of 2008
 
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