International Journal of Arab Arbitration

Volume 11 - No. (1) 2019

Table of Contents

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ARTICLES 

- The Application of the New York Convention by Egyptian Courts: An Empirical Analysis – By Ibrahim Shehata

- The Unified Agreement for Investment of Arab Capital in the Arab States in Practice: A double facette? – By Girgis Abd-El Shahid, Inji Fathalla, Mohamed El Mahdy and Moustafa Abdelhamid

- Criminal Sanctions Targeting Arbitrators: An Egyptian Perspective – By Mohamed Sweify 

ARBITRATION–RELATED DECISIONS ISSUED BY STATE COURTS IN ARAB JURISDICTIONS


Egyptian Case Law


No. 1 – Court of Cassation – Commercial and Economic Circuit – Dispute No. 9968 of the Judicial Year 81 – 9 January 2018 –– International Arbitration – Challenge of the Cairo Court of Appeal’s Judgment – Appeal Judgement Annulling Interim Order As Per Respondent’s Request – Composition of the Arbitral Tribunal Purportedly Irregular – One of the Tribunal’s Members Being a Judge – No Authorization From the Supreme Judiciary Council Prior to Accepting the Arbitration Mission – Not a Ground for the Annulment of Arbitral Award – No Violation of Public Policy if the Appointment of the Judge is Authorized Through Prior Approval – Reversal of the Judgement and Remittal to the Cairo Court of Appeal



Iraqi Case Law

No. 1 –Commercial Court of First Instance of Kerkh – No. 1 of 2018 – 17 July 2018 –– Request to Appoint Arbitrators Before the Court of First Instance – Dispute Already Filed Before State Courts – No Objection From the Other Party – State Courts' Jurisdiction to Hear that Case – Arbitration Clause Considered Waived Given that the Parties Resorted to State Courts – Request to Appoint Arbitrators Rejected by Court

 


Jordanian Case Law

No. 1 –Jordanian Court of Cassation – Dispute No. 2552/2018 – 7 August 2018 –– Challenge before the Court of Cassation of the Jordanian Court of Appeal’s Judgement – Appeal Judgment Rejecting the Challenge of the Arbitral Award by the Claimant on the Basis that the Tribunal’s Award Included Matters that Do not Fall Within Its Powers – Contract to Perform Project’s Works – Alleged Lack of Jurisdiction of the Arbitral Tribunal to Decide on the Works – Related Dispute – Works Related to the Project – Arbitral Tribunal Has Not Exceeded its Powers – Court of Appeal Cannot Examine the Merits of the Case Except for Violation of Public Policy – Challenge Rejected by the Court of Cassation


No. 2 –Jordanian Court of Cassation – Dispute No. 2586/2018 – 10 September 2018 –– Challenge of the Amman Court of Appeal’s Judgment Rejecting a Request to Terminate the Arbitral Proceedings – Arbitral Award Purportedly Not Rendered Within the Legal and Contractual Time Limit – Article 37 of the Jordanian Arbitration Law – Arbitral Tribunal Must Render its Award Within the Contractual Time Limit or 22 Months After the Start of the Arbitral Proceeding – Otherwise Either Party Can Apply for the Arbitration Termination Before the President of the Court of Appeal –Decision Should Have Been Issued by the President of the Court of Appeal – The Court Which Examined the Request Does not Have Ratione Materiae Jurisdiction Over The Termination Decision – Reversal of the Judgment and Remittal of the Case to the President of the Court of Appeal



Lebanese Case Law

No. 1 –Beirut Civil Court of Appeal – Fourth Chamber – Final Decision No. 619 – 30 April 2018 –– Challenge of the Judgement of the Previous Court of Appeal of Beirut – Party Who Has an Interest in the Lawsuit Should Update the Court About the Outcome of the Arbitration – Certificate Filed in the Arbitration Showing no Final Decision Was Rendered in Parallel Criminal Proceedings – Judgment Deciding The Arbitration Should be Stayed Until a Final Decision is Rendered in the Criminal Proceedings – Appeal Rejected

No. 2 –Beirut Civil Court of Appeal – Fourth Chamber for Arbitral Matters – Decision No. 649/2018 – 10 May 2018 –– Challenge of Two Arbitral Awards – Arbitral Tribunal Allegedly Lacking Jurisdiction – Competence to Examine the Dispute – Arbitration Clause Has Allegedly Lapsed – Absence of Arbitration Agreement – Arbitration Agreement Can Take the Form of an Arbitration Clause or of an Arbitration Submission Agreement – Arbitration Clause is Sufficient in Itself to Refer the Dispute to an Arbitrator Without the Need to Draw up a Subsequent Arbitration Submission Agreement – No Time Limit for the Arbitration Clause – Independence of the Arbitration Clause – Arbitral Award Does not Mention the Seat of Arbitration – Not a Ground for Annulment of Arbitral Award– Challenge Rejected

Libyan Case Law

No. 1 –Supreme Court – Administrative Circuit – Administrative Challenge No. 66/65 – 9 May 2018 –– International Arbitration – Amicable Settlement of an Arbitration Dispute – Administrative Decision Approving the Settlement – Challenge of the Administrative Decision Withdrawing the Approval’s Decision – Lack of Jurisdiction of Administrative Courts – Withdrawal Decision Relates to Matters of Private Law and International Commercial Arbitration Rules – Reversal of the Contested Administrative Decision

Moroccan Case Law

No. 1 –Moroccan Court of Cassation – Commercial Chamber – First Division – Decision Number 1/358 – Commercial File Number 58/3/1/2015 – 22 September 2016 –– Challenge of the Commercial Court’s Decision Before the Moroccan Court of Cassation – Commercial Court’s Decision Dismissing the Request for Annulment as A Result of the Deposit Procedures of the Arbitral Award – Arbitral Award Contained an Agreement Concerning Deposit Procedure – Alleged Distortion of the Content of the Agreement Resulting in a Defect in the Reasoning – Judgment has not Distorted the Substance of Any Agreement and Provided a Sound and Sufficient Explanation – Rejection of the Challenge

Omani Case Law

No. 1– High Court – Challenge No. 62/2018 – Commercial Circuit (B) – 6 November 2018 –– Challenge of the Court of Appeal’s Judgement Annulling Arbitral Award for Not Mentioning the Arbitrator’s Nationality – Absence of Mention of the Arbitrator’s Nationality Has No Effect on the Arbitral Award – Not a Ground for Annulment of the Arbitral Award – Award Purportedly Delivered to the Parties Through the Arbitral Tribunal not Through a Notification – Arbitration Clause not Mentioned in the Award – Approval of the Parties on Arbitration by Attending Hearings and Agreeing on Arbitral Proceedings is Tantamount to Agreeing to the Arbitration Clause – Challenge Accepted


Tunisian Case Law

No. 1–Court of Cassation - Case No. 43090/2016 – 6 November 2017 –– Domestic Arbitration – Challenge of the Civil Appeal Judgment – Judgment Deciding to Accept the Request to Set Aside the Arbitral Award on Procedural Grounds and Reject it on the Merits – The Ad Hoc Domestic Arbitral Award decided the Cancellation of the Sale and the Termination of the Mandate’s Effect Which Was Issued by the Claimant in favour of the Respondent – The Control Carried Out by the Setting Aside Judgement is Limited to the Grounds as Exclusively Provided for in Article 42 of the Arbitration Law – Subject Matter of the Dispute is Allegedly Outside of the Scope of the Arbitration Agreement – Dispute Allegedly Relating to the Implementation of the Sale and not to its Validity or Annulment – Alleged Breach of Fundamental Principles of Procedures as the Arbitral Award Did not Contain Any Motivation and Did not Address the Parties' Pleas – Breach of the Parties' Rights of Defense – Alleged Clear Violation of Public Policy – Challenged Award Breached in a Shocking and Clear Manner Public Policy – Alleged Breach of Article 42 of the Arbitration Law for Ruling Outside the Scope of the Arbitration Clause – Dispute Relating to the Validity of the Sale Contract –Court of Cassation Cannot Examine Challenges that Were not Included in the Scope of Jurisdiction of the Court Rendering the Contested Judgment – These Challenges Cannot be Raised Before It and Should be Rejected on Procedural Grounds - Appeal Rejected on the Merits 165


No. 2 – Tunisian Court of Cassation – Case No. 50776/2017 – 7 June 2018 –– Challenge of the Tunis Court of Appeal’s Judgement – Annulling Arbitral Award Rendered in Tunisia – Arbitral Award Concerning Construction Contracts – Appellant Allegedly Failed to Fulfill its Obligations Within the Contractual Timeframe – Allegedly Causing Substantial Harm to the Defendant – Proceedings Leading to the Constitution of Two Arbitral Tribunals for the Same Dispute Between the Same Parties – First Arbitral Tribunal Was a Domestic Institutional Arbitration Under the Auspices of the QICCA – Second Arbitral Tribunal Was an International Ad Hoc Arbitration Rendered in Tunisia – The Two Arbitral Tribunals Rendered Contradictory Awards – Claimant Sought Annulment of the Award Rendered in Tunisia on the Basis that it Was in Contradiction with the Award Previously Rendered in Qatar – Court of Appeal Ruled that the Claims Submitted by the Claimant Were not Sufficiently Detailed – Article 68 of the Code of Arbitration Provides that the Claimant is Required to Provide to the Arbitral Tribunal the Relevant Factual Elements that Serve the Basis of His Claim – It Stems from the Award that the Claimant Had Submitted his Claim in a Global Manner – Failure to Provide Sufficient Details in the Claims Submitted Does not Violate the Provisions of Arbitral 68 of the Code of Arbitration – In So Far as the Word Claims Was Mentioned Therein in Generic Term – Tunisian Court of Cassation Ruled that the Judgement of the Court of Appeal is Baseless – The Court of Cassation Decided to Overturn the Appealed Decision and Remand the Case to the Tunis Court of Appeal – Commentary by Ahmed Ouerfelli

Qatari case law

No. 1– Doha Criminal Court of First Instance – Third Trial Chamber – Case No. 1650/2018 – 31 October 2018 –– Judgment in a Criminal Case – Conviction of the Arbitrators In Abstentia – Award Rendered in a Construction Dispute – Crime of Using Authority to Harm Others and Obtain Illegitimate Benefit – Arbitrator’s Liability Based on Articles 3 and 160 of Law No. 11 of 2004 Promulgating the Penal Code – Treatment of Arbitrators in General as Public Officers – Arbitrators Found Guilty of Arbitrarily Changing the Nature of the Dispute from Domestic to International  – Arbitrators Moving the Seat of Arbitration from Qatar to Tunisia – Altering the Basis of the Arbitration from Institutional to Ad Hoc –  Rendering a Final Award in Tunisia Rather than in Qatar Contrary to the Will of the Parties – Arbitrators Sentenced to Three Years’ Imprisonment and a Fine of QR 10,000 – Arbitrators Barred from the Practice of Arbitration in Qatar – Commentary By Sarrah Eljaili, Omar Qouteshat & Thomas Williams

UAE case law

No. 1–Dubai Court of Appeal – Appeal No. 403 of 2016 – Real Estate – 11 January 2017 –– Appeal of Judgement of the Dubai Court of First Instance – Alleged Application by the Court of First Instance of the Arbitration Clause Despite a Waiver by the Parties – Arbitration is Consensual – Interpretation of the Arbitration Clause in Good Faith –  Parties Agreed to Waive the Arbitration Clause – Annulment of the Appealed Judgment and Remittal of the Dispute to the Court of First Instance to Decide on the Merits 229


No. 2–Dubai Court of Cassation – Commercial Challenge No. 66 of 2017– 5 March 2017 –– Challenge of the Court of Appeal’s Judgement – Appeal Judgment Accepting the Jurisdiction of the Dubai State Courts Despite the Presence of an Arbitration Clause – Agreement of the Parties to Remove the Arbitration Clause from the Contract by Inserting Another Clause Replacing the Arbitration Clause and Giving Jurisdiction to the State Courts of Dubai – Jurisdiction of the Dubai State Courts Confirmed – Rejection of Challenge 233


No. 3–Dubai Court of Cassation – Commercial Challenge No. 79/2017– 5 March 2017 –– Challenge of the Court of Appeal’s Judgement Rejecting Appeal for Lack of Jurisdiction – Rejection Based on Presence of an Arbitration Clause  – Contract for Works Does not Allegedly Provide for the Settlement of Dispute Through Arbitration – Clause Providing for the Settlement of the Dispute in Accordance with FIDIC General Conditions for Works – Court's Interpretation that the Parties Agreed to Arbitration – Arbitration Clause Allegedly not Raised Before the Centre for Amicable Settlement of Disputes in the Emirate of Dubai – Arbitration Is a Judicial Authority Empowered by the Legislator to Judicially Settle Some Disputes – Courts Consider that it is Not a Waiver of the Arbitration Clause – Raising the Arbitration Clause During the First Hearing Before State Court is Permissible – Challenge Rejected

STATE-COURT DECISIONS RENDERED BY NON-ARAB JURISDICTIONS 

No. 1–English Commercial Court of Appeal – Case No. A4/2018/1462 – 12 July 2019 –– English Court Proceedings Launched by a Lebanese Living in England Against Her Brothers – Father’s Death and Alleged Theft of Inheritance – One Brother Domiciled in England and Used as Anchor Defendant – Brothers Commenced Arbitration in Lebanon After English Proceedings Commenced – Asset Misappropriation and Share Deprivation Claims Before the English Courts – Wills and Successions Allegedly Excluded from the European Jurisdictional Regime – Wills and Successions Allegedly to Be Dealt With in the Most Closely Connected Jurisdiction Which is not London – Subject Matter of the Dispute Before the English Courts Was Misappropriation not Inheritance – Wills and Succession Exception Concerning the Most Closely Connected Jurisdiction Cannot Apply – European Jurisprudence Characterises a Claim by Focusing on its Substance and Subject Matter – European Jurisdiction Regime Did Apply to the Claims – English Courts Have Jurisdiction to Rule on the Claims – Claims Subject to Arbitration in Lebanon – Arbitral Tribunal Seated in Lebanon Ruled that it Had Jurisdiction – Appellants Sought a Mandatory Stay from English Courts in Favor of the Lebanese Arbitration – English Court of Appeal Refused to Stay the Proceedings – English Court of Appeal Held that the Defendant Was not Bound by the Arbitration Agreement Under Lebanese Law – Defendant Applied to the Commercial Court for an Injunction Restraining the Appellants from Taking any Steps to Proceed with the Lebanese Arbitration – Application Granted – Appeal of the Judgement of the Commercial Court – Defendant’s Claims Concerning the Share Deprivation Are Now Within the Scope of the Arbitration Agreement Since Claims Raised Within the Lebanese Arbitration – Court of Appeal Ruled that it Lacked Jurisdiction to Enjoin the Appellants from Pursuing the Claims in the Lebanese Arbitration that Fell Within the Arbitration Agreement – Court of Appeal Discharged the Anti-Arbitration Injunction Regarding the Appellants' Claims that Are Within the Scope of the Arbitration Agreement – Injunction Maintained Regarding the Appellants’ Other Claims Related to Asset Misappropriation – Commentary by Neil Hart 241


No. 2–English Commercial Court of Appeal – Case No. A4/2019/0283 – 3 July 2019 –– English Judgement – Arbitration Between an English Company and the State of Libya – US$85 Million Arms Deal – Libya Allegedly Failed to Meet its Financial Obligations Under the Contract in the Middle of a State of War During Arab Spring – Award in Favor of the English Company – Claimant Requesting for Permission to Enforce the Award in England – Initial Order Granted Permission to Enforce the Award and Dispensed with the Requirement for Service of the Arbitration Claim Form and the Order Granting Permission to Enforce the Award – State of Libya Applied to the English Court to Set Aside the Parts of the Order Which Dispensed with Service of the Order Granting Permission to Enforce the Award – Setting Aside of the Award by the English Court – Appeal of the Judgment Setting Aside the Award before the English Court of Appeal – Court of Appeal Held that an Order Permitting Enforcement of an Award is not a Document Instituting Proceedings Against a State – Order Not Falling Within the Scope of Section 12(1) of the State Immunity Act and Does not have to Be Served on the Foreign State via the Foreign & Commonwealth Office – Court of Appeal Set Aside Order of the English Court – Commentary By George Burn & Tayla Dyer

ARBITRAL AWARDS RENDERED IN ARAB JURISDICTIONS SYRIAN WORLD

No. 1–Arbitral Award – 11 October 2016 –– Domestic Arbitration – Parties to Arbitration Are Entitled to Waive the Time Limit for Rendering an Award Fixed by the Law – Conciliation Attempt Between the Parties – Payment of the Advance on Arbitration Costs Considered as a Cancellation of the Conciliation Proceedings – Request for Arbitration Included Statements in Contradiction with the Contract Signed by the Parties Subject Matter of the Dispute – Arbitral Tribunal Inquiries About the Will of the Parties – Arbitral Tribunal Bases its Decision on the Pieces of Evidence Produced to Interpret the Will of the Parties – Arbitral Tribunal Guided by Case Law and Fairness – Arbitral Tribunal Decided the Distribution of Liability on Both Parties

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