International Journal of Arab Arbitration

Volume 9 - No. (1) 2017


Table of Contents

ARTICLES

-A Commentary on the New Sudanese Arbitration Act of 2016 – by Al Kosaimi Salah Ahmad

-Enforcement of Arbitral Awards and the Recovery of Assets in Qatar: is Bankruptcy an Optimal Solution?- by Yassin El Shazly

-The New Qatari Arbitration Law in Light of the Modern Principles of Commercial Arbitration – by Sultan Al-Abdulla and Yassin Elshazly

-Enforcement of Foreign Judgments and Foreign Awards: The DIFC Conduit – by Karim Nassif and Farah El-Hajj Purice

-Where Does the Arbitration Clause Stand in Algerian Case Law- A Legal Regime in the Making – by Yakout Akroune


ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS

Algerian Case Law

-Supreme Court – File No. 662514 – 5 May 2011  International Commercial Arbitration – Summary Enforcement of an Arbitral Award – Challenge – International Arbitral Award Issued Abroad Cannot be Challenged by Way of Annulment or Amendment Before the Algerian Judicial Authorities – Even if the Challenge Relates to Summary Enforcement – By Accepting the Challenge the Council Judges Exceeded their Power – Ruling Subject to Reversal and Annulment – Annulment of the Contested Ruling

Bahraini Case Law

No. 1–Court of Cassation – First Circuit – Challenge No. 185/2013 – 2 February 2015  Challenge of the Court of Appeal’s Ruling – Appointment of an Expert by the Court – Claim Inadmissible Due to the Existence of an Arbitration Clause – Appeal of the Judgment – Rejection of the Appeal – Challenge Before the Court of Cassation – Alleged Misapplication of the Law Because the Dispute Did not Fall Within the Scope of the Arbitration Clause – Alleged Inexistence of the Arbitral Clause after Termination of the Contract Containing it – Challenge Unfounded – Rejection of the Challenge – Commentary by Salah Ahmed El-Madfaa

No. 2–Court of Cassation – Challenge No. 148/2002 – 3 March 2003  Challenge of the High Court of Appeal’s Ruling – Insurance Policy – Agreement to Settle any Medical Dispute by Two Experts – Alleged Non-Compliance With the Time Limit to Claim the Amount – The Agreement is Allegedly not an Arbitral Clause but a Mere Agreement on the Appointment of Experts – Dispute not Related to a Medical Matter – Challenge Unfounded – Challenge Rejected

Egyptian Case Law

No. 1–Cairo Court of Appeal – Seventh Commercial Circuit – Arbitration No. 65 of 132/n – 6 January 2016  Arbitral Award – Challenge for Invalidity of the Arbitral Award – Failure to Mention the Address of the Parties – Failure to Attach the Arbitration Clause Not Requirements Under Egyptian Law – Annulment is not a Goal in Itself and Cannot be Requested Without Legal Interest – Rejection of the Annulment Claim

No. 2–Cairo Court of Appeal – Seventh Commercial Circuit – Arbitration Case No. 66 of 132/n – 4 November 2015  Arbitral Award – Lack of Independence of the Arbitrator as a Ground to Annul the Arbitral Award – The Bias of the Arbitrator Violates the Principle of Equality Between the Parties – Breach of Impartiality is a Matter of Public Policy – Elements of Impartiality are not the same for the Judiciary – Arbitrator’s Connection to the Facts and the Parties was Known from the Outset – Claim Rejected

Jordanian Case Law

No. 1–Court of Cassation – Case No. 2247/2015 – 7 February 2016  Arbitral Award – Challenge – Contract for Works Concluded with the Ministry of Public Works and Housing – Arbitration Clause – Impossibility of Resorting to Arbitration – Subject of the Arbitration Falls under Public Policy – Arbitral Tribunal Ruled Ultra Petita When it Exceeded the Arbitration Agreement and the Parties’ Claims by Ruling on the Payment of Expenditures – Reversal of the Ruling – Remittal of the Case to a Lower Court

No. 2–Amman Court of Appeal – Case No. 36969/2014, 11 November 2015  Arbitral award – Bank Did not Hand Over the Promissory Notes and Documents as Required by the Award – Ruling on the Conclusiveness of the Arbitral Award – Res Judicata Granted by Court of First Instance – Plea to Annul the Arbitral Award Irrelevant As Res Judicata Granted– Reversal of the Appealed Ruling Granting Conclusive Effect and Res Judicata by the Court of First Instance – Remittal of the Case to the Court of First Instance

Lebanese Case Law

No. 1–Civil Court of Appeal – First Chamber – Decision No. 244/2016 – 24 February 2016  Domestic Arbitral Award – Appeal – Withdrawal of an Arbitrator – Alleged Invalidity of the Arbitral Tribunal’s Composition – Validity of the Arbitral Tribunal’s Composition According to the Court – Absence of the Arbitrator’s Signature on the Award – Non-Submission of a Document to Discussion – Arbitrator Doing his Own Investigation – Alleged Violation of Public Policy (No) – Alleged Violation of the Rights of Defense (No) –
Alleged Disregard of Party’s Claims – Not a Ground for Appeal – Appeal Rejected

No. 2–Beirut Court of Appeal – Decision No. 591/2016, 10 May 2016  Domestic Arbitral Award Rendered in Ex Aequo et Bono – Request for Annulment  – Expert Report – Reliance thereon by the Arbitrator – Matter Relating to the Merits of the Dispute – The Court Does not Examine the Merits in the Action for Annulment – Request for Annulment Rejected

Moroccan Case Law

-Higher Council – Commercial Chamber – First Division, 5 January 2000  Arbitral Award – Challenge – Alleged Violation of the Rights of Defense and Failure to Respond to the Parties’ Claims – 
Insufficiency of the Motivation and Lack of Legal Basis of the Contested Decision – Request Rejected

Omani Case Law

No. 1–High Court – Commercial Circuit – Challenge No. 430/2016 – 27 September 2016  Arbitral Award – Challenge – Request to Suspend the Arbitral Award Enforcement – Invalidity of the 
Appointment of a Sole Arbitrator – Not in the Jurisdiction of the Court of Appeal – Administrative Contract – Jurisdiction Should Go to the President of the Administrative Court of Justice – Impermissible to Settle in Matters Related to Public Policy – Decision Issued by the Court of Administrative Appeal on the Nullity of the Arbitral Award is Irrevocable – Res Judicata – Challenge Rejected 

No. 2–High Commercial Court – Case No. 230/2013 – Commercial Circuit No. 9/2013  17 April 2014 – Arbitral Award – Challenge – Plea of Forgery – Case Still Under Investigation by the Public Prosecutor – The Arbitral Tribunal did not Suspend the Proceedings – Alleged Invalidity of the Arbitral Award – Incorrect and Groundless Basis – Challenge Rejected

Saudi Case Law 

No. 1–Board of Grievances – Jeddah’s Eighth Administrative Court – 28 September 2016  Award Rendered in London Under the GAFTA Rules – Interests Granted on the Amount Awarded – Request for Partial Enforcement of the Award Without the Interest – Respondent Alleged that the Amount Claimed by Claimant is in Violation of the Principle of Reciprocity – Alleged violation of the Shari’a for Awarding Usurious Interests – Principle of Reciprocity Can Only be Invoked in Case of Existence of a Bilateral Agreement – Not Awarding Interests Does not Annul the Arbitral Award Requested to be Enforced in its Entirety in Accordance with the New York Convention Ratified by the Kingdom of Saudi Arabia – Enforcement of the Appealed Award

No. 2–Board of Grievances – Administrative Court of Appeal at the Makkah Region – First Commercial Circuit – 2014-2015  Administrative Lawsuit – Arbitration Clause – Request for Referral to Arbitration – Request Granted – Conciliation Settlement Put an End to the Dispute – Request to Confirm the Conciliation Settlement – Confirmation of the Termination of the Lawsuit by the Court

Sudanese Case Law 

-National Supreme Court – Civil Circuit – Challenge No. 1641/2012 – 10 May 2012  Arbitral Award – Challenge Submitted Outside the Legal Time Limit – Award Vitiated Because of Manifest Errors in the Application and Interpretation of the Law – District Court Misinterpreted the Law and Erred – Decision of the Competent Court is Final – Cannot be Subject to any Challenge Brought Against it Before the Court of Appeal and the Supreme Court – Dismissal of the Request for Lack of Jurisdiction

Syrian Case Law 

No.1–Damascus First Civil Court of Appeal – Decision No. 24 – 2 March 2016  Joint Venture Contract – Arbitral Clause – Decision to Nominate a Sole Arbitrator as Amiable Compositeur – Absence or 
Resignation from his Mission Lead to the Expiry of the Arbitration Clause – Parties Did not Nominate Another Arbitrator Despite the Tribunal’s Request – Appeal Rejected

No. 2–Court of Cassation – First Chamber – Decision No. 93 – 21 April 2014  Arbitral Award – Challenge – Arbitral Award Should be Signed by all the Arbitrators – Arbitrator’s Refusal to Sign the Award – Necessity to Mention the Reasons for the Refusal – Presence of the Arbitrator During the Issuance of the Award – Challenge Rejected

UAE Case Law 

No. 1–Court of Cassation – Commercial Challenge No. 303/2014 – 19 April 2015  Challenge – Arbitration Clause Imposing a Condition to Resort to Arbitration Prior to Resorting to State Courts – 
Mediation and Conciliation Clause – Impermissible for the Petitioner to Blame the Respondent in Cassation for Not Choosing a Person as a Mediator and Conciliator – Challenge Unfounded – Challenge Rejected

No. 2–Commercial Court of Cassation of Abu Dhabi – Challenge No. 447/2010 – 30 September 2010  Arbitral Award – Challenge – Flaws that May be Invoked for Annulment Purposes are Exclusively Enumerated in Article 216 of the Code of Civil Procedure – Any Other Challenge is Inadmissible – Insufficient Substantiation and Error Committed by the Arbitrator are not Grounds for Annulment – Ruling not Annulled by the Failure to Reply to a Defense not on the Merits that  Does not Change the Findings Reached in the Case – Arbitrator Obligated to Respect the Time Limit – Parties Explicitly Agreed to Extend the Time Limit – Challenge Rejected

Yemeni Case Law
 
-Supreme Court – Arbitral Circuit, Tribunal (B) – Commercial Appeal No. 55461 – 13 November 2014  Arbitral Award – Challenge – Alleged Violation of the Law Because of the Nullity of the Terms of Reference – Alleged Bias of the Arbitrator who Had Previously Represented the Respondent – Ground Concerning the Impartiality of the Arbitrator Never Raised in the Case of Invalidity – Purpose of the Challenge is to Delay the Dispute – Appeal Rejected


ARBITRATION NEWS

I. Arbitration Updates on New and Recent Laws, Cases and State Activities

II. Conferences, Trainings and Seminars

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

IV. Books, Articles and Other Publications


TEXTS/LAWS/REPORTS/DOCUMENTS

-The Sudanese Arbitration Act 2016
-The Qatari Arbitration Act No. 2 of 2017 Applying the Civil and Commercial Arbitration Law

 
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