International Journal of Arab Arbiration

Volume 1 - No. (2) 2009

 
Table of Contents

Editor's introductory note

DOCTRINE

  • The new Moroccan Law No. 05.08 Relating to Arbitration and Mediation Agreements - by Abdel Rahman Mesbahi
  • The respect by the arbitrator of rules of public policy in international commercial disputes - by Hossam El Talhouny
  • Cultural sensitivity and international arbitration – by Khawar Qureshi
  • Claims, dispute and arbitration by virtue of the "conditions of contract for works of civil engineering construction (Red Book)” - by Jamal el Dine Nassar
  • Arbitration in all related disputes to oil according to the new Algerian Hydrocarbons Law - by Mustapha Trari Tani
  • The language(s) of arbitration and its/their effects - by Nasser El Zaid

ARAB JURISPRUDENCE

Egyptian Case Law

  • No.1- The arbitral award that does not refer to the arbitration agreement is null and void - Commentary by Dr. Fathi Wali
  • No.2- The arbitral award can be set aside, but is only subject to appeal based on the parties' agreement
  • No.3- Recourse for annulment should be filed after a ninety-day notification period: In the case where there are three respondents notified, the status of limitation start running for each respondent individually
  • No.4- According to the New York Convention, Egyptian Courts are not competent to settle annulment claims against foreign arbitral awards (not rendered in Egypt)
  • No.5- The request to challenge the arbitrator submitted after the applicable deadline is null and void
  • No.6- The stance of the Egyptian legislator goes along with the will of the parties to arbitration by agreeing on making their dispute fall outside the jurisdiction of any state court
  • No.7- Fraud vitiates the notification of a copy of the arbitral award and deprives it of its effect
  • No.8- The ruling of an arbitral award in US Dollars is not a violation of public policy

Jordanian Case Law

  • No.1- The arbitration agreement deprives the courts of their jurisdiction
  • No.2- Action for setting aside the arbitral award is decided after settlement of the petition to challenge the arbitrator
  • No.3- Filing action for setting aside the arbitral award does not require a specific form
  • No.4- Continuation of the arbitral proceedings in spite of breach of the arbitration clause in the arbitration agreement is a waiver of right to object
  • No.5- The arbitrator is the one who decides the taking place or not of the arbitration
  • No.6- Initiating arbitral proceedings and failure to file an objection means acceptance of the arbitration
  • No.7- Arbitrator exceeding the limits of his mission– Setting aside the arbitral award – Granting leave for enforcement to the award takes place after its confirmation

Kuwaiti Case Law

  • No.1- Arbitration clause– Free zones dispute– Jurisdiction of the arbitral tribunal over the free zones – Non-jurisdiction of the arbitral tribunal
  • No.2- State courts have no jurisdiction to settle disputes upon which the parties agreed to refer to arbitration– Agreement on subjecting the arbitral proceedings to the rules and regulations of the Commercial Arbitration Centre for the States of the Co-operation Council for the Arab States of the Gulf– Request to challenge the arbitrator– Implementation of the Center's rules– Not replying to a plea having no effect on the findings is not considered as a defect in the justification
  • No.3- Arbitration is a judicial process of a special nature– Non-extension of the arbitration agreement to another contract
  • No.4- Dispute relating to an administrative contract– No jurisdiction of the arbitral tribunal
  • No.5- Contracts concluded before the arbitration law entered into force– Arbitration –Arbitral Tribunal – Incompetence – Public policy
  • No.6- Agreement on ordinary arbitration –No jurisdiction of the arbitral tribunal
  • No.7- Arbitration request – Administrative decision – Jurisdiction – The arbitral tribunal automatically rules thereon – Arbitration is not permissible in matters in which conciliation is not allowed – The arbitral tribunal has no jurisdiction, as per the competence-competence principle, to settle the dispute – The rules of jurisdiction with regard thereto are of public policy

Lebanese Case Law

  • No.1- Challenge against the award prior to granting it leave for enforcement- Award contemplating a summary enforcement proceedings- Order granting leave for enforcement- Order with no summary form- Automatic stay of enforcement- Rejection of the challenge- Commentaries by: 1)Elias Nassif 2) Wael Tabbara
  • No.2- Appointment of an equity arbitrator by the court– The arbitration clause does not contain the method of appointment of the arbitrator – Annulment of the appointment decision
  • No.3- Decision to appoint an arbitrator– Request to stay the execution thereof before the Court of appeals– Rejection of the request– Recourse against the appeal ruling before the Court of cassation– Rejection of the cassation
  • No.4- Equity arbitration– The appeal ruling rejecting the request to annul it cannot be subject to cassation
  • No.5- Preliminary arbitral award– Recourse against the arbitral award by way of appeal or by way of annulment is not possible if the award is not summarily self-executing– Exceeding the limit of mission– Filing recourse for the first time in the Court of cassation is rejected
  • No.6- Request to reverse the arbitral award– Article 804, paragraph 2, of the Code of Civil Procedure imposes the compliance with a specific description when making recourse against the arbitral award
  • No.7- Non-mentioning of the place of issue of the arbitral award– Challenge against this award is to be submitted to the Court of appeals within which jurisdiction the decision granting leave for enforcement to the award was rendered/ place of the arbitration seat
  • No.8- Equity arbitration– The implementation of a rule of law does not make it arbitration in law– The ruling rendered by the Court of appeals in the recourse against the arbitral award is not subject to cassation if the Court does not annul this award

Moroccan Case Law

  • No.1- Filing the foreign arbitral award with the Clerks' Department of the court of the place of enforcement is not compulsory because the filing only concerns domestic arbitral awards- The method of submitting the request to recognize and enforce the foreign arbitral award is governed by the provisions of the New York Convention (1958) and should be respected, otherwise there is risk of rejection
  • No.2- The agreement on arbitration states that the competent body is arbitration courts not state courts
  • No.3- Resorting directly to state courts by the two parties to the contract does not constitute an implicit agreement to waive the arbitration agreement because agreements can only be amended or revoked through an explicit agreement
  • No.4- The plea to the rejection of the case due to the presence of an arbitration clause should be raised prior to obtaining a reply on the merits
  • No.5- Arbitration is the law of contracting parties– The arbitration clause was included in a general contract without signatures– The signed contract to open a current account gave the courts the authority to settle the dispute arising between the bank and its customers– No arbitration– Jurisdiction of the state courts– Cassation

Omani Case Law

  • No.1- Plea to the existence of an arbitration clause in the administrative contract– Rejection of the plea
  • No.2- Administrative contract– Administrative Court – Plea to the existence of an arbitration clause– Vacation of the judgment ruling the rejection of the plea– Rejection of the case– The Administrative Court remains competent to settle all the ancillary issues pertaining to arbitration
  • No.3- Administrative Court– Plea to the rejection of the case due to the existence of an arbitration clause– The Court is attempting to apply the arbitration law– Rejection of the case due to the existence of the arbitration clause
  • No.4- The Administrative Court has exclusive jurisdiction to examine administrative contracts– Arbitration Clause- Application of arbitration provisions on disputes related to administrative contracts– Plea to the existence of an arbitration clause– Rejection of the case- With a commentary by Abdullah Al-Saidi

Qatari Case Law

  • No.1- Capacity to execute an arbitration agreement – Signing in the capacity as vice president of the company– Several companies on whose behalf the representative of the respondent signs– Consider them as one company
  • No.2- Contracting contract– Arbitration– Exceptional events– Overburdening the debtor– Restore the overburdening obligation to the reasonable limit

Syrian Case Law

  • No.1- Dispute– Arbitration clause– Jurisdiction to hear the dispute– Public policy- Commentary by Ahmad Haddad
  • No.2- Rejection of the claim granting leave for enforcement to the arbitral award on procedural grounds– Filing a new suit– Appointment of an arbitrator by the judge– Withdrawal– Acceptance of the arbitration mission by the judge
  • No.3- Arbitral award– Request to grant it leave for enforcement– Joinder is unacceptable– Agreement on the arbitrator– No effect – Protective measure– No competence for the arbitrators– Giving evidence of the presence relationship between the claimant and the arbitrator
  • No.4- Arbitral award– Issuance thereof in the name of the Arab People of Syria– Substantial requirement
  • No.5- Granting the arbitral award leave for enforcement– The court examines closely whether the award fulfills the procedural requirements– Pleas on the merits fall outside the scope of examination
  • No.6- Request to grant a leave for enforcement for an arbitral award– Explicit violation by the arbitrator of one of the articles of the contract subject-matter of arbitration– The contract is the law of the contracting parties– Rejection of the request
  • No.7- Arbitrators are not bound by the rules of procedure – Their mission continues in case of extension of the arbitration deadline to render the award–The extension does not prevent the continuance of such empowerment
  • No.8- The court may not automatically raise the existence of an arbitration clause

Tunisian Case Law

  • No.1- Is the court competent for an annulment request filed against an arbitral award entitled to obtain the arbitration file? Commentary by Ahmed Ouerfelli
  • No.2- Recourse for annulment- Situations explicitly mentioned- Judicial aid- The condition for previous authorization has no effect on the validity or annulment of the arbitration award- Attempt to reexamining the facts is inadmissible
  • No.3- Main Contractor or the person he appoints- Arbitration clause- Transfer the arbitration clause follows the transfer of the underlying debt- Capacity available

U.A.E. Case Law

  • Arbitration- Decision to "challenge the award: awards that can and cannot be challenged”– Commentary by Ibrahim Al-Mulla

Yemeni Case Law

  • No.1- The challenge against some parts of the arbitral award is acceptable if it can be separated from the other parts without the award being affected in whole
  • No.2- The court may not examine the merits of the dispute
  • No.3- The request of a third party intervention in an arbitral litigation is refused
  • No.4- New grounds raised for the first time will not be accepted before the Supreme Court if they were not raised before the arbitral tribunal
  • No.5- The jurisdiction of the arbitral tribunal ends with the issuance of the arbitral award and the tribunal is not competent to enforce it– Enforcement should be carried out by state courts

INVESTMENT ARBITRATION

I. Awards and Decisions of the International Centre for Settlement of Investment Disputes between States and Nationals of Other States (ICSID), Washington D.C.

  • No.1- A settlement agreement concluded under duress in order to reduce the amount effectively owed under an arbitral award, contravenes the Bilateral Investment Treaty that requires fair and equitable treatment of the investments of investors of the other Contracting State– The settlement agreement is not entitled to international effect– Commentary by Mohamed Abdel Raouf
  • No.2- The Arbitration Agreement requires the mutual intention of both parties to be met and expressed in a written or oral agreement. In the latter case, the parties should intend to create legal relations between themselves– Commentary by Mostefa Trari – Tani
  • No.3- An ICSID Tribunal does not exceed its powers in stating that it had to verify that the party holds the nationality of the contracting State, in order to ascertain its competence over the case- Commentary by Hafiza El Haddad

II. Awards issued by the Arab Investment Court

  • Award rendered under the auspices of the Arab Investment Court- The Arab investor has the obligation to respect the applicable Laws in the host State who has the right to sue him upon violation of its laws – Commentary by Walid Ben Hamida

AWARD OF THE COURT OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE

  • Exclusive distribution agreement between a German manufacturer and a Lebanese distributor- Absence of an explicit condition in the contract related to choosing the applicable Law on the dispute– the only choice of the place of arbitration cannot be considered as the choice of the Law that should be applied– the Arbitration Tribunal identifies the applicable Law according to the rules of conflict of Laws related to the parties– rule of the place of arbitration– rule of the place of the distributor– executing the main obligation of the contract– Application– Commentary by Hadi Slim

ARBITRATION NEWS

TEXTS/LAWS/STATUTES

 
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