International Journal of Arab Arbitration

Volume 10 - No. (2) 2018

Table of Contents


ARTICLES 

- Investor-State Dispute-Settlement in the Arab World: Is there a clear path for reform? – by Farouk El-Hosseny & Ruba Ghandour

- UAE Arbitration Users Look East – by Thomas R. Snider & Khushboo Shahdadpuri


ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS


Egyptian Case Law


No. 1 –Cairo Court of Appeal – Seventh Commercial Circuit – Case number 41 of 132J – 3 February 2016 Ü Set Aside Proceedings – Alleged Violation and Misapplication of the Law – Arbitral Tribunal Purportedly Relied on a Photocopy of a Document – Original not Submitted to the Arbitration – Actual Aim of the Challenge is to Reexamine the Merits of the Award – Such an Action Falls Outside the Scope of the Jurisdiction of the Court of Annulment – Article 53 of the Arbitration Law – Challenge Inadmissible.

No. 2 –Court of Cassation – Challenge No. 16351 of 85J – 14 December 2017  Ü Cassation Against Court of Appeal's Ruling – Contested Ruling Refused to Set Aside Challenged Arbitral Award – Alleged Violation and Misapplication of the Law – Alleged Jurisdiction of the Ordinary Courts After the Promulgation of the Law No.203 of 1991 Ü Compulsory Arbitration Invalid – Between Companies governed by Said Law or Between Such Companies and Public Entities or Governmental Entities – Contested Appeal Ruling Rendered After the Promulgation of Said Law – Merits Can be Settled by the Court of Cassation – Court of Cassation Rules to Set Aside such Arbitral Award.



Iraqi Case Law

No. 1 –Federal Supreme Court of Iraq – No. 549/2008, Ruling No. 602 – 28 January 2018 Ü Challenge of Court of Appeal’s Ruling – Request for Re-Examination and Reversal of Ruling – Court Finds Ruling Invalid and in Violation of the Law – Arbitral Award Issued in Accordance with the Provisions of the Contract for Works – Court Ruling on the Merits of the Case Whereas it Should Have Confirmed the Arbitral Award – Court Ruled Otherwise – Reversal of the Ruling.

No. 2 –Karkh Court of First Instance – Number 4/2017 – 29 November 2017 Ü Challenge of the Arbitral Award – Court Did not Find any Error – Arbitration Clause Contained in the Contract – Arbitral Award Did not Contain Anything Necessitating Annulment or Modification.



Jordanian Case Law

No. 1 –Amman Court of Appeal – Civil First Instance – Case No. 18437/2017 – May 2017 Ü Appeal Against the Ruling of the Court of First Instance of Amman – Ruling that the Object and Cause of the Case Before the Court of Appeal Are not the Same as the Ones Raised Before the Arbitral Tribunal – Article 111 of the Code of Civil Procedure According to Which All Claims Related to Public Policy May be Raised at any Stage of the Case – Rejection of the Appeal on the Merits and Confirmation of the Appealed Judgment – Remittal to the Lower Court.

No. 2 –Civil Court of Cassation – Case No. 704/2017 – 22 March 2017 Ü Appeal Against the Court of Appeal's Ruling – Alleged Non Careful Examination by the Court of Appeal of the Pleas of the Parties – Application of Article 49 of the Jordanian Law on Arbitration by the Court of Appeal – Review by the Court Does not Extend to the Merits of the Dispute – Review by the Court of Appeal in Compliance with Articles 834 and 836 of the Civil Code – Court of Cassation Rejected this Ground – Alleged Violation of the Confidentiality of the Arbitral Hearings – Arbitral Agreement Did not Require Confidentiality – Challenge Rejected.


Lebanese Case Law

No. 1 –Court of Cassation – Fifth Chamber – Ruling No. 91/2015 – 28 September 2015 Ü Domestic Arbitration – Cassation – Challenge of a Ruling by the Beirut Court of Appeal – Court of Appeal Rejected the Annulment of Arbitral Award – Claimant Requests a Stay in the Enforcement of Contested Ruling – Application of Article 804 of the Code of Civil Procedure – Challenge for Annulment Was Rejected – Arbitration Rendered in Equity – Ruling by the Court of Appeal Cannot be Challenged by Way of Cassation – Appeal and Annulment Proceedings Shall be Conducted and Decided According to the Rules of Civil Procedure – Challenge Rejected.

No. 2 –Beirut Civil Court of Appeal – First Chamber – Ruling No. 702/2017 – 6 June 2017 Ü Domestic Arbitration – Challenge of an Arbitral Award – Arbitrator Allegedly Exceeded his Mission – Pursuant to Article 800/3 of the Code of Civil Procedure – Arbitrator Should Have Examined the Dispute According to Rules of Law and not According to the Rules of Equity – Taking Specific Custom and Usage Into Consideration Does not Mean Arbitrator Exceeded His Mission – Alleged Violation of the Principle Pacta Sunt Servanda – Not a Ground to Annul the Arbitral Award – Challenge Rejected


Omani Case Law

 –Muscat Court of Appeal – Challenge No. 776/2017 – 20 November 2017 Ü Challenge of an Arbitral Award – Alleged Failure to Apply the Applicable Law Agreed Upon – Challenge not Falling Under the Grounds Listed in Article 53 of Arbitration Law – Court of Appeal is not a Court of Second Degree Reviewing the Merits of Arbitral Awards – Challenge Rejected.


Qatari Case Law

Court of first instance – First Circuit – No. 3147/2015 – 31 January 2016 Ü Request Seeking to Appoint a Sole Arbitrator to Adjudicate the Dispute in Compliance with Article 195 of the Code of Procedure – Claimant Did Not Comply with the Provisions of the Contract before Initiating the Proceedings – Request Seeking to Appoint a Sole Arbitrator Deemed Prematurely Submitted – Request Inadmissible

Syrian Case Law

No. 1 –Statements Contradicted by Hearing’s Records as Heard by Arbitral Tribunal – Grounds Against the Appealed Ruling Are Unfounded – Court of Appeal’s Ruling Appropriately Applied Precedents Regarding the Facts – Challenge Rejected.


No. 2 –Court of Cassation – First Civil Chamber (b) – Decision Number 223 of 201 – 25 July 2016 Ü Challenge of Court of Appeal’s Ruling Annulling an Arbitral Award – Alleged Non-Response by the Court to the Pleas Raised – Court of Cassation Considered Subject Matter of the Arbitral Proceedings is Beyond the Scope of the Arbitration Clause Included in the Lease Contract – Arbitral Award Deciding on Matters not Falling Under the Scope of the Arbitration Agreement – Challenge Rejected.

UAE Case Law

No. 1 –Court of Cassation – First Civil Chamber (b) – 10 May 2016 Ü Challenge of the Court of Appeal’s Ruling Annulling an Arbitral Award – Notification of the Arbitral Proceedings Purportedly Not Served at the Elected Domicile of the Appellant – Statements Contradicted by Hearing’s Records as Heard by Arbitral Tribunal – Grounds Against the Appealed Ruling Are Unfounded – Court of Appeal’s Ruling Appropriately Applied Precedents Regarding the Facts – Challenge Rejected.


No. 2 –Courts of Dubai – Court of Cassation – Commercial Challenge No. 721/2017 – 29 October 2017 Ü Challenge in Cassation of the Court of Appeal’s Ruling – Alleged Violation and Misapplication of the Law – Agreement to Arbitrate Allegedly Void – Signature by a Person With no Authorization on the Company’s Behalf – Manager of a Limited Liability Company is Authorized to Represent it – Capacity to Dispose of Rights Relating to the Company’s Activity – Including the Agreement to Arbitrate in Contracts with Third Parties – Challenge Rejected

Yemeni Case Law

 –Supreme Judicial Council – First Commercial Appeal Division of the Governorate – Action for Setting Aside No. 15/1437 hijri – 19 February 2017 Ü Action for Setting Aside of an Arbitral Award – Arbitral Award Allegedly Null and Void for Lack of Legal Basis – Arbitral Award’s Alleged Failure to Mention the Claimant’s Requests and Objections – What Was Raised by the Applicant is Substantive Controversy Which Does not Fall Within the Jurisdiction of the Court of Appeal – Action of Setting Aside Dismissed.



ARAB-RELATED STATE COURT DECISIONS RENDERED BY NON-ARAB JURISDICTIONS 

No. 1 –InfoSpan Inc, Infospan (Gulf) Inc v Emirates NBD Bank PJSC – US Court of Appeal – Ninth Circuit – 7 September 2018 Ü Parallel US Federal Court Litigation and DIFC Arbitration – Appeal of the District Court’s Judgment – Court Held that Defendant Preserved its Personal Jurisdiction Defense in Previous Proceedings By Timely Asserting it – Reversal of District Court’s Decision Compelling Arbitration of Claims Concerning a Contract – United Arab Emirates Bank Waived its Personal Jurisdiction Defense – No Basis for Personal Jurisdiction Over the Bank – Because the Defendant the United Arab Emirates Bank Lacked Sufficient Contacts with the United States – Commentary by Cherine Foty.

No. 2 –Taurus Petroleum v State Oil Marketing Company of the Ministry of Oil,  Republic of Iraq – 25 October 2017 Ü Decision by the Supreme Court – Claim to Enforce an Arbitral Award Against Iraqi State Oil Company – Enforcement Refused At First Instance and Before the Court of Appeal For Lack of Jurisdiction – Supreme Court Held that the Situs of a Debt Under a Letter of Credit is the Place of the Debtor’s Residence – Letter of Credit Issued by the London Branch of Credit Agricole – Supreme Court Held that The Debt Owned Under the Letter of Credit Had England as Its Situs – Enforcement of Arbitral Award – Commentary by Roger Kennell and Dr. Jamsheed Peeroo.


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

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