International Journal of Arab Arbitration

Volume 9 - No. (2) 2017

 


Table of Contents

ARTICLES

- UAE’s Free-Standing Arbitration Law – by Essam Tamimi & Hassan Arab

- Settling Construction Disputes in Oman "Recent trends in Omani Courts”- by Amel K. Abdallah

- Pakistan’s legal Framework for International Arbitration and Seminal Judgments of the Supreme Court – by Rana Sajjad Ahmad

- Overview about the DIAC Arbitration Rules of 2018 – by Tarek Riad

- An Overview of Recent CAS Awards Related to the Arab World – by Antonio Rigozzi

ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS

Egyptian Case law

No. 1– Cairo Court of Appeal – Seventh Commercial Chamber – Case n°87 of the Judicial Year 131 – 4 May 2016 Ύ International Arbitration – Case Submitted to the Cairo Court of Appeal – Challenge of the Arbitral Award – Alleged Lack of Jurisdiction of the Cairo Court of Appeal – Alleged Jurisdiction of the Administrative Court Given the Public Nature of the Underlying Contract – Alleged Waiver of the Right to Challenge the Award by the Parties – Dismissal of the Claim – Jurisdiction of the Cairo Court of Appeal in Case of an International Commercial Arbitration Award – Waiver of the Right to Challenge an Arbitral Award Precluded

No. 2– Cairo Court of Appeal – Seventh Commercial Chamber – Case n° 23 of the Judicial Year 132 – 6 January 2016 Ύ International Arbitration – Civil Enforcement of an Arbitral Award – Article 9 of the Arbitration Law Providing for Jurisdiction of the Cairo Court of Appeal for International Commercial Arbitration Matters – No Provisions Governing the Court’s Jurisdiction Case of Enforcement of Awards – Such Litigation is Subject to the Code of Procedure – Article 280 of the Code Providing for the Enforcement of Arbitral Awards that Have Res Judicata – Lack of Jurisdiction of the Court of Appeal – No Ratione Materiae Jurisdiction of the Court of Appeal – Res Judicata to the Court of First Instance’s Judgments – Remittal of the Case to the Judge of Enforcement

No. 3– Cairo Court of Appeal – Seventh Commercial Circuit – Case n° 31 of the Judicial Year 133 – 7 December 2016 Ύ Foreign Arbitral Award – Application Seeking the Enforcement of the Arbitral Award – Existence of an Arbitration Agreement – Electronic Email as an Arbitration Agreement – Referral of the Arbitral Dispute to the China International Economic and Trade Arbitration Commission – Arbitral Tribunal Retaining Jurisdiction – The New York Convention Considers the Arbitration Agreement Written if Contained in an Electronic Communication – Leave for Enforcement to the Arbitral Award Granted

Kuwaiti Case Law

- Court of Cassation – Fifth Commercial Chamber – Case n° 500 and 2013/1996 – 9 July 2014 Ύ International Arbitration – Enforcement Application – Alleged Lack of Special Power by the Parties to Sign the Arbitration Clause – Rejection of the Challenge – New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards – Kuwait Party to the Convention – Application of the New York Convention by the Judge – Obligation for the Judge to Recognize the Executory Force of a Foreign Arbitral Award

Lebanese Case Law

No. 1– Beirut Civil Court of Appeal – First Chamber – Decision n° 272/2017 – 8 March 2017 Ύ Domestic Arbitration – Challenge of the Arbitral Award – Alleged Violations of the Arbitration Procedure – Challenge Submitted to a Court Lacking Territorial Jurisdiction in Accordance with Article 802 of the Code of Civil Procedure – Challenge not Filed with the Court of Appeal in the Territorial Limits of which the Arbitral Award Was Rendered – Dismissal of the Challenge for Annulment

No. 2– Beirut Court of Appeal – First Chamber – Decision n° 202/2017 – 22 February 2017 Ύ Action for Annulment of the Arbitral Award – Alleged Violation of the Rights of Defense and Public Policy Rules – Arbitrator Allegedly Relied on the Expert’s Report to Verify Material Facts Without Discussion – Resorting to an Expert is a Means of Evidence that Only the Arbitrator can Appreciate – No Violation of the Rights of Defense – Alleged non Application by the Arbitrator of Ex Aequo et Bono Rules in a Flexible Manner – Refusing to Grant to One of the Parties its Claim Does Not Mean Violation of Ex Aequo et Bono – No Violation of Public Policy – Rejection of the Action for Annulment

Moroccan Case Law

- Court of Cassation – Challenge n° 250/1 – 16 June 2016 Ύ Domestic Arbitration - Challenge of an Arbitral Award – Claimant’s Failure to Appoint an Arbitrator – Arbitral Tribunal Allegedly Exceeding the Scope of its Mission – Court Considered the Arbitration Clause Included All Disputes Relating to the Performance of the Contract – Arbitral Tribunal Did Not Exceed its Mission – The Abstention of One of the Parties from Appointing an Arbitrator Does not Result in Depriving the Arbitrators of Jurisdiction in Favor of the State’s Judiciary – Claim Rejected

Qatari Case Law

No. 1– Court of Cassation – Second Civil Chamber – Challenge n° 244 of the year 2016 – 25 October 2016 Ύ International Arbitration – Challenge of the Arbitral Award – Bankruptcy Case – Alleged Right not to Implement the Award for Lack of Executory Force – Alleged Lack of Executory Force of the Award for Being Linked to a Bankruptcy – Acceptance of the Challenge – An Arbitral Award is not Binding if the Obligation it Relies on is not Yet Due

No. 2– Civil Court of Cassation – Third Chamber – Challenge n° 344/2016 – 10 January 2017 Ύ Arbitral Award Issued in Qatar in Accordance with the Arbitration Rules of the International Chamber of Commerce – Issuance of the Award in Qatar – Alleged Lack of Agreement by the Parties not to Appeal the Award – Right to Appeal the Award Allegedly Remaining in Accordance with National Law – Rejection of the Challenge – The Parties Agreed to Arbitration – Arbitral Award is Binding

 

No. 3– Court of First Instance – High Court – Ninth Circuit – Civil and Commercial Plenary and Partial Appeal – Case n° 3379/2014 – 28 May 2017 Ύ International Arbitral Award – Request for Enforcement of the Arbitral Award in Qatar – The New York Convention to Which Qatar is a Party Does not Prevent the Right to Appeal the Award in the Place of Enforcement – Bankruptcy of the Defendant Company Confirmed by Arbitral Award for Non-Payment of its Financial Obligations – Declaration of Bankruptcy by the Court

Emirati Case Law

No. 1– Dubai Court of Cassation – Challenge n° 119/2016 – 27 November 2016 Ύ Arbitral Award – Alleged Violation of the Law by the Arbitral Tribunal – Double Correction of the Award by the Arbitral Tribunal – Correction Allegedly Exceeding the Material Defaults – Correction Allegedly Equivalent to a Reversion of the Award – Dubai Party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – Provisions of this Convention Are Applicable Legislation in the Case of Arbitral Awards Issued in a Foreign Country – Binding Force of the Award – Rejection of the Challenge

No. 2– Dubai Court of Cassation – Challenge n° 795/2016 – 15 January 2017 Ύ Domestic Arbitral Award – Award Rendered Under the Auspices of the Dubai International Arbitration Centre – Request for Annulment of the Award – Article 216 of the Code of Civil Procedure Providing that the Request for Recognition and Enforcement of the Arbitral Award Should be Submitted to the Court before the Request for Annulment – Inadmissibility of the Action for Annulment Because of Prematurity – Challenged Award Annulled

Omani Case Law

- Muscat Court of Appeal – Commercial Chamber – Appeal n° 174/2016 – 11 April 2016 Ύ Arbitral Award – Challenge of the Award – Alleged Administrative Nature of the Dispute – Alleged Public Nature of the Contract Because of the Subject Matter of the Arbitral Award Related to an Administrative Contract – Alleged Jurisdiction of the Administrative Judge – Contract Subject of the Dispute Signed by Two Private Parties - Rejection of the Challenge

Tunisian Case Law

- Court of Cassation – Case nº 2148/2013 – 28 November 2013 Ύ Domestic Arbitral Award – Challenge of the Validity of a Promise of Sale – The Commencement of the Arbitrator’s Mission is not Subject to any Formal Requirement – The Arbitrator Accepts his Mission by Simply Doing the First Procedural Step Included in his Mission – Meeting the Arbitral Tribunal is Considered a Step - The Arbitrator’s Mission Ends at the End of the Fixed Arbitration Time Period

Iraqi Case Law

- Court of First Instance of Al Karkh – Case n° 3552/B/2015 – 20 March 2016 Ύ Submission of a Claim before the Iraqi Court – Request to Confirm the Arbitral Award – Request Dismissed – The Arbitral Agreement Does not Include a Conciliation Clause – The Arbitral Award did not Respect the Iraqi Rules of Civil Procedure Concerning the Review of the Claim – Including the Respondent’s Request to Place the Claimant Under Oath – The Respondent Was Obliged to Take an Oath before the Arbitral Tribunal – The Judge Can Therefore Annul the Arbitral Award

Sudanese Case Law

- Supreme National Court – Case n° 1170/2012 – 10 May 2012 Ύ Request to the Court to Constitute an Arbitral Tribunal – Article 8/1 of the Sale of Property-Mortgaged-to-Banks Act of 1990 Obliges Clients to Resort to Arbitration Before the Courts – One Arbitrator Appointed by Each Party – Chairman to Be Agreed Upon by the Arbitrators – If the Appointment is Impossible the Governor of the Bank of Sudan Appoints a Substitute Chair – The Bank and the Governor Have Refrained from Proceeding with the Appointment – Client’s Right to Resort Directly to National Courts – Courts Cannot Accept a Claim Unless it is in the Form of an Appeal – It is not Within the Jurisdiction of the National Courts to Constitute an Arbitral Tribunal – Request Dismissed

Syrian Case Law

No. 1– Court of Cassation – First Civil Chamber – 26 July 2016 Ύ Arbitral Award – Action for Annulment of the Arbitral Award – Contract of Sale – Arbitration Clause – Extension of the Arbitration Clause to a Third Party – Such Party Should be a Party to the Contract of Sale – Or at Least Explicitly Give Consent to the Arbitration Clause – Party Requesting the Annulment is not a Party to the Contract – Rejection of the Challenge

No. 2– Damascus Civil Court of Appeals – Case n° 57 – 1 June 2016 Ύ Arbitral Award - Action for Annulment of the Arbitral Award – Claimant Did not Attend a Hearing – Hearing Fixed by the Arbitrator Without Claimant’s Knowledge – Claimant Was not Notified of the Holding of the Hearing – Claimant Ordered to Pay a Certain Amount of Money in American Dollars – Legislator Forbade Payment in Currencies Other Than Syrian Pound – Ground Per Se for the Annulment – Annulment of the Arbitral Award for Violating Public Policy

ARBITRATION NEWS

I. New and Recent Laws and Rules

II. New and Recent Arbitration Cases

III. Conferences, Seminars and Trainings

IV. Books, Articles and Other Publications

V. Miscellaneous News about Lawyers, Law Firms and Other Institutions

TEXTS/LAWS/REPORTS/DOCUMENTS

- UAE Draft Federal Law No. [ ] of 2017 On Arbitration


 
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