Part 2 -CASE LAW
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* |
Cases and decisions
of reference are published in a chronological order and classified by volume.
Partie's names and comments are mentioned where relevant. |
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I/ Lebanese Case
Law
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59 |
1 - Arbitral award - Recourse - Acceptance -
Omissions of arbitrator - Foreign currency - Contradiction -Annulment -
Interpretation. Court of Appeal of |
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60 |
2 - Arbitration - Court of Appeal -
Competence - Obligations of arbitrator - Annulment - Privity of contracts.
Court of Appeal of |
|
60 |
3 - Arbitral award - Recourse - Effects - Discharge - Public policy - Statute of Limitation - Commencement. Supreme Court, 1st Section, Decision No 5 of 4/ 1/ 1990. (Geitani / Engineering & Construction Company) |
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61 |
4 - Amiable composition - Arbitrators - Competence - Arbitrator's task Supreme Court, 1st Section, Decision No 9 of 13/ 12/ 1990. (Achkar / Bitar) |
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61 |
5 - International arbitration - Condemned party not party to the arbitration - Rejection of international arbitration award - Annulment (No). Supreme Court, Decision No 13/1991 of 25/ 4/ 1991. (Mohammad Tamin Salaheddine Khayat /Oxford University Publishing Company). |
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62 |
6 - Drafting of the Arbitration Agreement : Amendments and corrections. Supreme Court, 2nd Section, Decision No 22/93 of 8/4/1993. (Jean Tamer & Abdo Chemaly / Antoine Chahine & Sons Company) |
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62 |
7 - Challenge to
arbitrator -Voice recording. Tribunal of 1st Instance of |
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62 |
8 - Recourse - Challenge to arbitrator - Appeal - Privity of arbitration - Quality of Attorney - Previous opinion of the arbitrator - Evidence (writing or confession) - Secret voice recording. Court of Appeal of Beirut, 9th Section, Decision No 766/ 93, of 15/ 12/ 1993 (Popular Credit Bank / Mr. Maurice Baz, Arbitrator Mr. Joseph Abou Charaf and Mr. Michel Joseph Katrib; Reversal of arbitral award decision which has decided to reject the appeal against the decision of the Tribunal of 1st Instance of Beirut, 3rd Section, Decision No 225/ 93 of 31/ 8/ 1993). |
|
63 |
9 - Arbitral award - Conditions - Possibility
to appeal - Recourses. Court of Appeal of |
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63 |
10 - Arbitration - Recourse - Impartiality of
arbitrator - Adversity - Evidence - Quality. Court of Appeal of |
|
64 |
11 - Arbitrator - Challenge - Adjudication -
Appellant not party - Statute of limitation Bar. Court of Appeal of |
|
64 |
12 - Recourse in cassation against an arbitral
award - Acceptance of cassation. Tribunal of 1st Instance of |
|
65 |
13 - Arbitral award - Annulment - Cassation (no) *. Supreme Court, 1st Section, Decision No 20/1994 of 5/4/1994 (Abd el Rahman Al-Tabchi / Mohammad Aref Abou Zanja). |
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65 |
14 - Arbitral award -
Recourses - Annulment. Court of Appeal of |
|
66 |
15 - Constitution of the arbitration panel. Supreme Court, 1st Section, Decision No 24/94 of 26/ 4/ 1994 (Edouard Eid / Popular Credit Bank). |
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66 |
16 - Arbitral award - Appeal - Annulment - Cassation - Adjudication -Possibility of cassation of the award (No). Supreme Court, 1st Section, Decision No 32 of 14/ 6/1994* (Emile Fares El Kousseifi / Byblos Tourism Company S.A.L.) |
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67 |
17 - Arbitral award - Ordinary recourses - Cassation - Waiver - Admissibility - Foreign currency - Borrowing in dollars. Supreme Court, General Assembly, Decision No 37/94 of 30/6/1994, by majority with two dissident opinions (President Roger Chidiac & President Monah Mitri), case note by Dr. Abdo Ghossoub.The Lebanese Company for Construction & Development (Kassabian / Bank Pharaon & Chiha S.A.L.) |
|
71 |
18 - Arbitral award - Recourse - Fees -
Exequatur - Appeal - Fixed fee and not proportional fee - Evaluation. Court
of Appeal of |
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72 |
19 - Arbitral award - Motivation - Arbitration
or Amiable Composition - Express terms - Competence - Principles - Annulment
- Effects on competence of the court - Procedure - Place of issue - Binding
effect - Final character - Waiver - Minutes of arbitration. Court of Appeal
of |
|
73 |
20 - Arbitral award - Appeal - Annulment -
Restrictive interpretation - Compromise - Waiver - Annulment procedure -
Annulment of the arbitral award - Non registration in the Real Estate
Register - Statute of Limitation. Court of Appeal of |
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* See Abdo GHOSSOUB, comments on No 17. |
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74 |
21 - Challenge of the arbitral award before
its notification - Conditions - Production of ordinary copy - Waiver -
Arbitration clause - Arbitration agreement - Duration of arbitration -
Extension - Deliberation - Signature - Exequatur. Court of Appeal of |
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75 |
22 - Arbitration procedure - Annulment -
Representation - Principles - Capacity - Minority - Custody - Non
representation of one of party one - Nullity - Public policy - Challenge -
Duration - Third party - Notification - Effects. Court of Appeal of |
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75 |
23 - Arbitration panel - Constitution -
Absence of the chairman - Annulment. Court of Appeal of |
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76 |
24 - Foreign ownership - Public Policy - Lease
agreement - Promise to sell - Decision to buy - Amiable composition - Option
on time - Extension. Court of Appeal of |
|
77 |
25 - Arbitration - Consolidation - Admissibility of appeal - Validity - Denaturation. Supreme Court, 1st Section, Decision Number 13/95 of 30/3/1995 (Michel Boutros Helou / Antoine Boutros Helou) |
|
78 |
26 - Annulement of an arbitral award -
Apparent Proxy - Adversarial procedure. Court of Appeal of |
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b/ International
arbitration in Lebanon |
|
79 |
27 - Exequatur - Foreign arbitral award - Arbitration clause - Option of arbitration - Agreement - Opposition - No exequatur . Supreme Court, 1st Section, Decision Number 11 of 27/4/1987 (International Company for Middle East & Africa / Mita Import-Export). |
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80 |
28 - Commercial agency - Arbitration - Appeal - Admissibility of cassation - Waiver - Public policy - Settlement - Civil procedure - Motivation. Supreme Court, 1st Section, Decision Number /16/ of 7/7/1988 (Gιrard Fortier Company / Georges Abou Adal Enterprise). |
|
81 |
29 - Exequatur -
Arbitration clause - Admissibility - Applicable law (Law of 1983) - Award
based on previous law - Relative effect. Court of Appeal of |
|
82 |
30 - International arbitration - Foreign award
- Condemned party not party to the arbitration - Rejection of the award -
Annulment (no). Supreme Court, Decision No 13/1991 of 25/ 4/ 1991. ( |
|
82 |
31 - Exequatur - Arbitration - Foreign award - Opposition - Effects - Suspension - Supreme Court, 2nd Section, Decision Number /13/ of 18/2/1993. (Eid Case). |
|
82 |
32 -Commercial agency
- Exclusivity - Termination of the agreement - Arbitration clause -
Protection of agent - Public policy - Article 5, Legislative Decree No 34*.
Tribunal of 1rst Instance of |
|
83 |
33 - International arbitration - ICC award -
International agency - International Agencey - Ultra vires - Violation -
Law-Decree N° 34/67 - Lebanese courts - Law - Competence*. Court of Appeal of
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|
83 |
34 - Commercial agency - Arbitration -
Arbitration clause - "Company de facto " - "Company created de
facto" - Private international law . Tribunal of first instance - 3rd
Section specialized in commercial matters - Decision Number 2898/92 of
3/2/1994 (Kazzi & Co S.A.L. / |
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84 |
35 - Exclusive agency - Merger -Agreement
Succession - Korean Arbitration Panel - Appreciation. Tribunal of first
instance - 3rd Section - Preliminary Decision of 5/4/1994 ( |
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* See case note by Nathalie NAJJAR, on page 57 (part I). |
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B - Lebanese and
Foreign Arbitral Awards. |
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86 |
36 - Company's exploitation agreement - Domestic arbitration - Termination of contract - Admission of arbitration - Fictitious character - Additional request - Arbitration object - Change - Evaluation - Down payment - Arbitration fee. (Arbitral award of 24/ 6/ 93 issued by President Youssef Saadallah El Khoury, Mr. Edmond Rizk and Dr. Ibrahim Najjar, with partial dissident by Dr. Ibrahim Najjar (VDL/JH). |
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86 |
37 - Banks - Domestic Arbitration - Arbitrator - Trading in Dollars - Interest. Arbitral award of 7/3/86 issued by the arbitrator Mr. Emile Abou Kheir (LTA / BPC). |
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88 |
38 - Commercial agency agreement between an Italian and Saudi - International arbitration - Application of Islamic law - Execution (No) - Trade Promotion (No)- Compensation. Arbitral award of 27/8/94 issued by an Arbitration Panel composed of Attorneys Abdo Oueidate, Walid El-Nakib, Abd- El Latif Kassem (PV / RS). |
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89 |
39 - Promise to sell a foreign tenant - Arbitral award - Real Estate Register - Lebanese public policy - Option - Nature - Application of the Foreign Ownership Law -Statute of limitation - Extension- Equity principles - Powers of the amiable compositeur . Arbitral award of 17/1/94 issued by the amiable compositeur Professor Hassan Rifaat (TDH / MBA). |
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II/ Arab Case
Law
A/ Court decisions |
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Egypt 93 40 - The
most important principles found by the Egyptian Supreme Court in civil and
commercial Arbitration. |
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104 |
41 - The Extracted principles from the
Arbitral Awards given under the authority of |
|
106 |
42 - Decision of 8/3/1987. 43 - Decision of
28/8/1991. 44 - Decision of 6/2/1992. |
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B/ Legal Principles
and arbitral awards
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114 |
b/ Sultanate of |
N° 2
I- Lebanese Case Law
Arbitral Awards
1- Court of Appeal of Beirut, 9th Section, dated 11/7/1996, No 134/94,
2- Award of Mr. Chafic AL-WAZZAN of April 20, 1994 (Jammal Trust Bank &
Safa)
II- Case Law in the Arab Countries
Jordan
48 2- Supreme Court, No 874/86, of 8/3/1987.
49 3- Supreme Court, No 768/91, of 6/2/1992.
51 4- Supreme Court, No 47/91, of 28/8/1991.
Page
Syria
53 5- Supreme Court, First Civil Section, No 306/95 of 26/9/1995.
53 6- Tribunal of First Instance of
54 7- Supreme Court, General Assembly, No 9/95 of 6/2/1995.
55 8- Supreme Court, third Civil Section, No 661/95 of 30/5/1995.
56 9- Supreme Court, third Civil Section, No 2974/93 of 10/11/1993.
56 10- Supreme Court, third Civil Section, No 949/94 of 27/3/1994.
57 11- Supreme Court, third Civil Section, No 958/94 of 27/3/1994.
- Comments on the ICC award in the case No
7418/95, By Fady Ziadι.
N° 7
I - Lebanese Case Law
A - Courts Decisions.
1 -
Tribunal of 1st Degree of Beirut, 2nd section, Decision n° 197/3 of
27/12/1991.
2 - Court of Appeal of Beirut, 9th section, Decision n° 766/93 of
27/12/1993.
3 - Court of Appeal of
4 - Court of Appeal of
5 - Court of 1st Degree of Beirut, 1st section, Decision n° 535/94 of
22/12/1994.
6 - Court of Appeal of Beirut, 1st section, Decision n° 1086/95, of 23/11/1995.
7 - Court of Appeal of
8 - Court of Appeal of
9 - Court of Appeal of
10 - Court of Appeal of
11 - Court of Appeal of
12 - Court of Appeal of
13 - Referee,
14 - Court of Appeal of
15 - Court of Appeal of
16 - Supreme Court, 2nd section, Decision n° 19/97 of 18/3/1997.
17 - Tribunal of 1st Degree, 4th Section, Decision n° 117/97 of
27/3/1997.
18 - Court of Appeal of
19 - Tribunal of 1st Degree of
20 - Supreme Court, 1st Section, Decision n° 29/97, of 18/12/1997.
22 - Supreme Court, 1st Section, Decision n° 10/98 of 27/1/1998.
23 - Court of Appeal of Beirut, Decision of 4/3/1998 (Appel of decision
rendered by the Tribunal of 1st Instance, Beirut, decision dated 23/10/1997).
B - Lebanese Internal Arbitral Awards.
24 -
OUEIDAT (1997).
25 - GEDAY (27/7/1996).
II - Arab Case Law
A - Courts Decisions
-
JORDAN
26 - Recourse n° 92/1992, Hearing of 14/2/1993.
27 - Recourse n° 19/1993, Hearing of 9/5/1993.
-
UNITED ARAB EMIRATES
28 - Supreme Federal Court, Civil Section, Decision of 14/2/1995.
29 - Supreme Federal Court, Civil Section, Decision of 10/11/1991.
-
TUNISIA
30 - Civil recourse of 17/3/1993.
31 - Civil cassation recourse of 17/31993.
32 - Civil cassation recourse of 10/11/1993.
33 - Court of Appeal, 14/6/1994.
34 - First Instance Tribunal, 27/1/1994.
-
QATAR
35 - Appeal of 3/2/1997.
-
EGYPT
36 -
Court of Appeal of Cairo, 62nd Section, commercial, Decision of
19/2/1997.
B - ARBITRAL AWARDS
37- Partial Arbitral Award n° 95/97 (Regional Cairo Center for
International Commercial Arbitration).
DECISIONS
IN FRENCH LANGUAGE
1- Arbitration - ICC - Exclusive distribution agreement in Lebanon.
French Company - Lebanese law, law of the place of performance of the
international contract. - Decree-law n°34/67 - Legality of arbitration -
Mandatory rules - Public policy (no) - Effectiveness of the award - Arbitration
clause - Text - Interpretation - Autonomy - power of the arbitrators. -
Arbitrator - Internal public policy - Transnational rules. - Termination of an
exclusive concession - Abuse - Motion - Legal cause - Damages - Elements -
Evaluation.
ICC award - Case n° 8606/AC - Sole Arbitrator - Mr. Kamel BEN SALAH
(Tunisia) - Paris, July 21, 1997 - Tradax S.A.L. (Lebanon) vs. Laboratories
VALDOR S.A. (France).
N° 10
CASE-LAW
A- LEBANESE COURTS DECISIONS
60 - 1- Supreme Court, 1rst Section, N° 8/98 of 17/11/98
63 - 2- Supreme Court, 1rst Section, N° 104/98 of 10/12/98
65 - 3- Supreme Court, 4th Section, N° 6/98 of 19/3/98
65 - 4- Court of Appeal of
71 - 5- Court of Appeal of
- 6- Court of Appeal of
78 - 7- Chairman of the tribunal of 1rst instance of
B- LEBANESE ARBITRAL AWARDS
79 - Ad hoc arbitration award reviewed in appeal by the Court of Appeal
(hereabove N°1004/98) of 4/9/1997
87 - Ad hoc arbitration award, of the 19/6/1998
C- ARAB AND INTERNATIONAL DECISIONS
EGYPT
95 - Administrative Court, Section of Administrative Contracts and
indemnifications of 10/5/98 97 - Tribunal of 1rst instance of South Cairo,
First Civil Section, of 27/1/98
99 - Arbitration rules of
N° 11
LEBANESE COURTS DECISIONS
17 1- Court of Appeal of
19 2- Court of Appeal of
20 3- Tribunal of 1st instance of
21 4- Tribunal of 1st instance of
24 5- Tribunal of 1st instance of
35 6- Supreme Court, 4th section, n° 1/98 of
27/1/98
36 7- Tribunal of first instance of
37 8- Judge of Metn District n° 49/98 of
1/4/98
38 9- Tribunal of 1rst instance of
39 10- Supreme Court, 5th section, n° 85/99 of
8/6/99
ARAB DECISIONS
JORDAN
41 1- Supreme Court, of 29/12/97
42 2- Supreme Court, of 30/12/97
43 3- Supreme Court, of 3/6/98
44 4- Supreme Court, of 7/6/98
45 5- Supreme Court, of 12/10/98
N° 13
-1- Chairman of the Tribunal of First Instance
of Tour, of January 27, 1994.
18-2- Tribunal of Frist Instance of
19 -3- Tribunal of First Instance of
25 -4- Supreme Court, of July 3, 1995.
30 -5- Court of Appeal of
32 -6- Court of Sppeal of
34 -7- Court of Appeal of
39 -8- Court of Appeal of
41 -9- Court of Appeal of
46 -10-Court of Appeal of
47 -11-Court of Appeal of
57 -12-Court of Appeal of
59 -13-Court of Appeal of
61 -14-Court of Appeal of
65 -16-Court of Appeal of
II- COURT DECISIONS AND ARBITRATION AWARDS:
54 A- Arbitral awards
- 1- Lease Contract: Award of Mr. M. EL KAοSSI, of
April 10, 1999.
55 - 2-
Solidere: Award of Mr. N. TYAN, of September 30,1999.
69 -3-
Leasing: Award of Mr. M. HARMOUCHE, of January 21, 2000.
78
-4- Contract Inexecution : Award of Mr. S. AOUN,
of February 21, 2000.
85 -5-
Contract Unilateral termination : Award Mr. R. MAALOUF, of April 3, 2000.
a- International Arbitration
95 -1-
Court of Appeal of Beirut, Third Section, No 764/99, of June 3, 1999.
99 - 2-
Court of Cassation, First Section, N°77/99 of June 17,1999.
b- Internal Arbitration
102 - 3- Court of Cassation,
First Section, N°84/99, of June 22,1999.
109 - 4- Tribunal of First Instance of Beirut, Fifth
Section, N°1425/99, of November 11, 1999.
110 -5-
Tribunal of First Instance of Beirut, Civil Section, of December 9, 1999.
110 -6-
Court of Cassation, First Section, N°108/99, of December 10, 1999.
113 -7-
Court of Appeal of Beirut, of December 17, 1999.
116 - 8-
Court of Cassation, First Civil Section, N°112/99, of December 21,1999.
117 -9-
President of the Tribunal of First Instance, N°551/99, of December 27, 1999.
119 -10- Tribunal
of First Instance of Mount Lebanon, Third Commercial Section, N°996/99, of
December 29,1999.
122 -11- Court of Cassation, First Section, N°5/2000, of
January 21,2000.
125 - 12- Court of Appeal of
Beirut, Third Section, N°211/99, of March 2nd, 2000.
126 - 13-
Court of Appeal of Beirut, Third Section, of May 4th, 2000.
130 -14-
President of the Tribunal of first instance of Beirut, of July 6, 2000.
N° 16
B. CASE LAW
1. ARBITRATION AWARDS
a. Lebanese Awards
--No. 1- Arbitrator and liquidator at the same time amiable
composition based on equityextension of the term of the arbitration
limited partnership expiration of the term of the
companyliquidationsubstitution of the liquidator for the manager personality
of the company during its liquidation.
Award of M.W. TABBARA, of 31 August 1999
(Merhej/Moujaess).
--No. 2 and 3- Leasing non-payment of amounts due agricultural
machines their restitution application of contractual provisions damages
and interest rectification of the arbitration award deadline of six months
from the date of signature of the Terms of Reference.
Award of M.I . NAJJAR, of
26 April 2000, No. 6/99 (
--No. 4- Power of attorney arbitration clause signed by the
principal a general power of attorney is sufficient amiable composition
disregard for the text of the law parties right to defense and to due
hearing contract impossibility of execution Syrian armed force occupying
the building nullity of contract restitution of money with interest and in
a foreign currency.
Award of the Arbitral Tribunal composed of M.
Metri (President), Mrs. Nayla Obeid (dissenting) and M.A. Nasser, of 16 June
2000 (General Company for construction and investment S.A.L./KAIS).
--No. 5International arbitration in Lebanon Arbitral award
execution abroad New York Convention American law of bankruptcy force
majeure application of American law to a foreign company.
Award of the Arbitral Tribunal rendered in
Beirut by the tribunal composed of Mr. Hammoud, Mr. Faresi and Mr. Makarem, 27
May 1999, Kuwait Airlines/Falcon Company).
b. Saudi Arabian Awards
--No. 1- Arbitration Award, 26/12/1995.
--No. 2- Arbitration Award, 31/12/1998.
--No. 3- Arbitraation Award, 27/7/1417 (a.h.).
--No. 4-Arbitration Award, 29/11/1419 (a.h.).
--No. 5- Arbitration Award, 19/8/1416 (a.h.).
--No. 6-Arbitration Award, 29/11/1419 (a.h.).
2. COURTS DECISIONS
--No. 1- Arbitration Arbitration clause judge of urgent causes
right of retention bilateral contract competence of judge of urgent causes
competence after submission of the case to the arbitrators.
CA North, 4th ch., no. 599/97, 29 December 1997 (Atlantic
Oils and Mills/Arab International Oil Producing Company.
--No. 2- Preliminary arbitration award recourse against such
award for expiration of the term of the arbitration inadmissible competence
of the Court of Appeal (article 800, Code of Civil Procedure) Nullity.
CA Beirut, No. 697/2000, of 15 June 2000 (Moujaess/Merhej).
--No. 3- Aimable composition expert right to defense interruption of the term
of the arbitration mandatory mentions in the arbitration award annulment
request not serious damages and interest.
CA Beirut, 3rd ch., no. 864/2000, of 13 July 2000 (Ammar/Daaboul).
--No. 4- Aimable composition arbitration award exequatur
annulment request equivalent to recourse against the judgment granting the
exequatur arbritration agreement tacit agreement drafting the award due
hearing principle prejudicial question
-- action in forgery.
CA Beirut, 3rd ch., No. 977/2000, of 7 September 2000
(Harake/Pharaon).
--No. 5- Arbitration clause arbitration in equity reference to
the code of civil procedure validity of the clause (affirmative).
CA Beirut, 3rd ch., of 19/10/2000 (Tabbah/Tabbah).
-6- International
Arbitration amiable composition waiver of the right of appeal
recourse to annulment remains possible
international arbitration award rendered in Lebanon recourse to annulment in
Lebanon exequatur not required due hearing procedure foreign law
not produced and not discussed annulment of the arbitration award.
CA Beirut, 3rd ch. no. 1135/2000, of 31 October 2000 (Kuwait
Airlines/Falcon Company).
1- ARBITRAL AWARDS
- No. 1- Arbitration - Confirmation of acts passed by the
representative - Signature of the compromise and annexes (yes).
Constuction code Permit for occupation of the premises - Condition for
sale or rent - Commitment of the lessor - Member of municipal council - Special
conditions offering stronger guarantees than the law-Authorised.
Arbiration award given by
the Arbitral Tribunal Composed of M. MITRI, A. YAZEGI and M. BAZ, 7/6/2000
(A.A. Company/A.T.A Company).
- No. 2- Arbitration - Companies - Real estate project -
Acquisition by foreigners Arbitration in
equity - Nationality of partners - Nominative shares - Necessity of this
mention in the Statutes - Shareholder actions - Annulment of contract.
Arbitration award given by
the arbitral tribunal composed of P. KHAIRALLAH, E. GASPARD and G. ADOUAN,
10/8/2000 (Syrian Catholic Patriarchate/Promotion and Enterprise Company).
2- COURTS DECISIONS
A- International Arbitration
- No. 1- International Arbitration - Foreign Company -
Competence - Court of the place of Signature of the arbitration compromise -
Arbitration clause - Designation of
arbitrator - Degree and method of his designation - Exclusive method (no) -
Lack of cooperation of one of the parties in the designation of the arbitrator
- Intervention of the judge (yes).
Court of Appeal of
- No. 2- International arbitration award - Rendered in a
foreign country - Recourse in Lebanon (no) - Appeal against the decision of
exequatur (yes) - Commercial representation - Trade protection in Lebanon - D-L
n° 34/67 -
Prohibition of recourse to arbitration - Violation of public order - Exequatur
- Annulment.
Court of Appeal of
- No 1- Arbitration - Penal law controls the civil law in
the state - Identity with the penal process - Not necessary - Appreciation -
Public Order.
Court of Cassation, 2nd Ch., 26/5/1986.
- No. 2- Arbitrator - Arbitration clause - Method of
designation of the arbitrator -
Cooperation of the judge - Examination of exceptions regardless of the
merits - Not necessary.
Court of Cassation, 1st Ch., n° 3, 26/5/1988
(Mallat/Moghabghab).
- No. 3- Arbitration - Object - Plurality of demands in
dispute - Divisibility - Recourse to cancellation of the arbitration award -
Request on the merits in a subsequent stage
-Possibility - Arbitration awards on the aforesaid right - Causes of
nullity.
Court of Appeal of
- No. 4- Arbitration awards - Request for annulment - Causes
of invalidity - Appeal (no) - Evaluation of compensation - Power of the
arbitrator which motivates his award - Rights of defense - Definition.
Court of Appeal of
- No.5- Arbitration - Extension - Tacit extension - New
extension - Incident appeal -First memorandum in response - Absence of
extention.
Court of Appeal of Beirut, 3rd Civ. Ch., n° 202/99, 16/11/2000 (Salha/El
Aouar and others).
- No. 6- Arbitration award - Annulment - Rights of the
defense - Respect for imperative legal rules - Judged matter - End of
litigation - Urgent and temporary measures
- Distortion of the parties demands - Denial of remedy.
Court of Appeal of
- No. 7- Arbitration clause - Promise of sale contract -
Transfer of right of option by the beneficiary - Its maintenance in the
contract.
Court of Appeal of Beirut, 10th Civ. Ch., 18/12/2000 (OFI
Co./Development and Constuction Co. and Urban Construction Co.), followed by a
commentary by Mr. Ibrahim NAJJAR.
- No. 8- Arbitration in equity - Statutes of the company -
Acquisition by foreigners of property rights - Arbitration award - Public order
- Annulment of the arbitration clause - Control of the judge.
Court of Appeal of Beirut, 3rd Civ. Ch., n° 1417, 19/12/2000 (Promotion
and Enterprise Company/Syrian Catholic Patriarchate).
- No. 9- Arbitration award - Appeal consisting of demand for
cancellation -Requalification by the
judge - Violation of law - Causes of cancellation of sentence -Leasing.
Court of Appeal of Beirut, 3rd, civ. Ch., n° 1439, 21/12/2000
(Ezzedine/Lebanese Leasing Co.).
- No. 10- Arbitrational award - Motivation system -
Confusion of grounds and system
-Possibility of execution - Indifference in the site of the system -
Confirmation of the award.
Court of Appeal of Beirut, 3rd civ. ch., no. 269, 15/2/2001
(Khoury and others/Kataeb Party).
2- ARAB ARBITRATION DECISIONS
EGYPT
a- International Arbitration
- No. 1- International arbitration - Agreement on
the application of a determined law -Law
linked to the litigation - Respect for the litigated conditions of contract and
customers - Administrative contract - Definition - Functioning of a public
service -Exorbitant clauses of common
law.
Court of Appeal of Cairo, 7th Commercial Section, 7/9/1999
(Public Transport Service/Italorc Co.).
b- Internal Arbitration
- No. 2- Arbitration Award - Recourse to cancellation -
Causes of cancellation -Evaluation of
compensation without sentence - Ultra petita Cancellation -Incompetence of the court to examine the
demand for compensation.
Court of Appeal of
- No. 3- Arbitration award - Defect in motivation -
Absence of agreement of the parties - Cancellation.
Court of Appeal of
- No. 4- Arbitration award - Recourse in cancellation -
Law of the date of its pronouncement.
Court of Appeal of Cairo, 62nd Commercial Section, 5/7/1999
(Egyptian Chamber of Commerce of Port Said/Saadallah and Azmi).
- No. 5- Arbitration - Public order - Order of execution.
Court of Appeal of
- No. 6- Arbitration - Designation -
Associate or representative of a party - Possibility - Quality of the arbitrator is limited to the
President of the arbitral tribunal.
Court of Appeal of
- No. 7- Arbitration - Arbitration agreement - Failure to
mention the problems and disputes concerned - Nullity.
Court of Appeal of Cairo, 7th Commercial Section, 7/9/1999
(Ghorayeb/Rizk).
N° 18
B. COURT DECISIONS
1.
No. 1 Arbitrator - Behavior -
Impartiality and objectivity - Liquidator of a company - Agents obligations -
Accountiong - Difference with the arbitrator -
Combination of the qualities of arbitrator and agent in one person (no).
Court of Appeal of
No. 2 Arbitration - Arbitrator -
Designation - Judge making provisional rulings (no) - Public policy.
Court of Appeal of
No. 3Arbitration - Points in dispute
Conclusions of the parties Motivation for the sentence Not detailed
(possible) Arbitrator Powers Assessment of the facts Requalification of
the contractual relationship Development of the arbitration Date of
hearings Verbal process Official document.
Court of Appeal of
No. 4Arbitrator Request
for recusal Extension (5 days) Institutional Arbitration Lebanese Centre
for Arbitration Reference to its rules Its Adoption Tacit withdrawal of
appeal.
Court of Appeal of Beirut, 3rd
ch., no. 541, 29/3/2001 (Abou Nader/Lebanese Leasing Co. S.A.L.).
No. 5Arbitration award Recourse Requalification
Demand for repeal Arbitration in equity Not express Recourse to equity by
the arbitrator Exceeding the mission entrusted to him Repeal.
Court
of Appeal of Beirut, 3rd ch., 26/4/2001 (Al Wahab/Abou Nassar).
No. 6Arbitration Provisional
measures Consulted (yes) Commercial representation Stock Illegal
holding Anonymous company Demand for intervention Urgency Majority.
Consultation judge of Baabda,
27/4/2001 (Boustany/Gemaco Co. S.A.L.).
No. 7__Arbitration Award Demand for
annulment Defect in mention of the place of pronouncement Motivation
Arbitration in equity No annulment Referred provision Provisional
execution Motivation (not necessary).
Court of Appeal of
No. 8__ International arbitration -
Arbitration award rendered in
Court of appeal of Beirut; 28/5/2001
(Senjab Trade Corporation / Senjab).
2.
No. 1 34: Decisions of the
Jordanian High Court in arbitration matters.
3. TUNISIA
-Decision
of the Court of Appeal of Tunis, n° 64474, 3/10/2000, note by
Mr. Ahmad Al WOURFALI.
N° 19
- Lebanese Courts Decisions
- N° 1- B.O.T. Administrative
contract Ban of compromise clause International arbitration Incompetence
of the arbitral tribunal Concession to competitive character Public policy
Ban on arbitration and bilateral (international) convention Limitation of
the domain of public policy by the State.
State Council, decision on
appeal no 9573/2000, of 17 July 2001 (
- N° 2- B.O.T. and
arbitration Compromise clause Administrative contract immediate
application of legal texts unless impossible Competence of administrative
courts.
State Council, decision on
appeal n° 9536/2000, of 17 July 2001 (
Jordan
The major principles of jurisprudence of the
Court of Cassation in the matter of Jordanian arbitration between 1999 and
2001.
N° 20
B- ARBITRAL AWARDS
- N° 1- Arbitration - Leasing -
Appointment of the arbitrator - Legal entity
-Acceptance of the arbitrators by the parties - Penalty clause -
Compensation due to breach of contract - Previous determination - Reduction.
Award of the Arbitrator Mr.
Raymond HARFOUCHE (
- N° 2- Arbitration - Legal
Characterization - Not restricted to the description of the parties -
Enforcement fine - Reduction (yes) - Penalty clause - Reduction (yes) - Joining
of two compensations based on different damages.
Award of the Arbitrator,
former Chairman of the Bar Mr. Samir ABILLAMAH (Lebanese Arbitration Center) of
June 6, 2001 (Lebanese Leasing Company S.A.L. / Hobeiche).
- N° 3- Arbitration - Leasing -
Force majeure (No) - Impossibility of execution
-Penalty clause - Contractual damages - Enforcement fine - Reduction -
Partial performance.
Award of the Arbitrator Mr.
Fadi GEBRANE (Lebanese Arbitration Center) of June 19, 2001 (Lebanese Leasing
Conpany S.A.L. / Atallah).
C- LEBANESE COURTS
DECISIONS
- N° 1- Contractual Arbitration -
Substance of the dispute - Binding the arbitrator - Limits of the arbitrators
powers - Renunciation to the arbitration procedure - Arbitration award -
Inexistence - Lack of fundamental characteristics - Exequatur - Rejection.
Court of Appeal of
- N° 2- International arbitration -
Definition - International State contract
-Criterion - Transfer of values over borders - Payment order issued by
the competent administration - Existence of an arbitration clause - Opposition
to the payment order - The arbitration clause does not stop enforcement.
Court of Appeal of
- N° 3- Arbitration award -
Recourse to the Supreme Court - Formal conditions required for its admission -
Certified copy of the decision of appeal - Payment of the duties of the
decision of appeal.
Supreme Court, 1st civil
section, Decision n° 68/2001, of June 13, 2001 (Geday / Commission for
Liquidation of Banks and National Institute of Deposits Guarantee).
- N° 4- Arbitration clause -
Joint-stock Company - Matters suitable for arbitration - Non violation of
public policy - Shareholders General Meeting
-Agenda of the meeting - Decisions concerning matters not included in
the agenda - Relative nullity - Decision relating directly to the person
requesting the nullity.
Tribunal of First Instance
of Mount Lebanon, 2nd Section, Decision n° 25/2001 of June 25, 2001 (Boustany /
Gemaco S.A.L.).
- N° 5- Arbitration - Institutional
Domestic Arbitration - Exequatur - Recourse decision (No) - Jurisdiction -
President of the Tribunal of First Instance
-Exequatur decision - Annulment procedure - Appeal - Mandatory territorial
jurisdiction - Pleading it in all levels of litigation.
Court of Appeal of
- N° 6- Arbitration - Challenge of
the arbitrator - Analogy with the challenge of the judge - Special procedure
for arbitration - Challenge of the arbitrator
-Reasons - Potential bias - Contradiction among two experts reports -
Partiality (No).
Court of Appeal of Beirut,
3rd Section, Decision n° 1443 of October 11, 2001 (Aad / The arbitrator Mr.
Ibrahim Traboulsi and other parties).
- N° 7- Arbitration - Duration -
Six months period - Beginning of the period
-Extension - Procedure - Expressly - Implicitly - Power of the parties
and of the arbitrator in the extension.
Court of Appeal of
D- TUNISIAN DECISIONS
- N° 1- Decision of the Supreme
Court (Civil Section), n° 54672 of June 11, 1998 (Maniklem Company / Russel
company).
- N° 2- Decision of the Court of
Appeal (Civil Section), n° 39 of June 15, 1996 (Al Mahdia / Al Moutawassitiya
Company).
- N° 3- Decision of the Court of
Appeal (Civil Section). n° 61133 and n° 61134 of October 9, 1999 (Hadia Company
/ Jat Company).
N° 21
B- CASE LAW:
Lebanese Courts
- N° 1- Domestic
arbitation - Arbitration clause - Conservation measures - Urgent admission -
Extreme urgency - Sequestration - Conditions - No urgency - Missions of the
sequestrators - Commercial company - Liquidation -Sequestration (No) - Independent lawsuit.
Baabda Civil Judge of
Urgent Causes, Decision of April 27, 2001 (Boustany/Gemaco).
- N° 2-
International arbitration - New York Convention - Lebanese arbitration law -
Principles more favorable to the validity of the arbitration award -International public policy - Violation at
the level of the grounds of the judgment and not of its results (No) - Applying
the Estoppel rule - Invoking the matter of the invalidity of the arbitration
clause for the first time in front of the judge of annulment - Rejection.
Supreme Court, Section 5,
Decision No 141/2001 of November 20, 2001 (Lebanese Energy Company / Pancy
Shipping Ltd).
- N° 3- Domestic
arbitration - Recourses - Cassation - Principle of contradiction in court -
Company - Powers of the Chairman of the Board - Recourse against the
arbitration award - Day to day operations included in his competence -Protection of the companys rights - Whoever
tries to contest something that he himself has made shall fail - The Estoppel
theory - Relativity of the arbitration award - Agreement to settle the dispute
concluded with a party outside the arbitration procedure - Admission - Not
binding for third parties.
Supreme Court, Section 5,
Decision No 142/2001 of Nov. 20, 2001 (Kbaiter Industrial and commercial
Company / Bsat Brothers S.A.L.).
- N° 4- Arbitration
- Exequatur - Arbitration award - Rejection of the exequatur request - Appeal
made during the thirty days period - Recourses - Arguments of the parties -
Amiable composition - Non-violation of public policy - Signing of the award -
Absence of the signature of the award by all members of the arbitration panel.
Supreme Court, Section 5,
Decision No 143/2001 of November 20, 2001 (Al-Awar / Salha).
- N° 5- Domestic
arbitration - Recourses - Conflicts of law in time - Appeal against the
arbitration award - Old arbitration law - Judicial public policy -Admission of the appeal against the
arbitration in amiable composition
-Exequatur - Rejection of the appeal does not justify the rejection of
the exequatur - No recourse against it - But the appeal against the arbitration
award or the request of annulment leads automatically to a recourse against the
exequatur decision itself.
Supreme Court, Section 5,
Decision No 146/2001 of November 29, 2001 (Boustany / Bouary).
- N° 6-
International arbitration - Issued in the name of the Lebanese People -That expression is void - It does not lead
to the invalidation of the award
-Control of the facts and the applicable law in the award (No) - Control
of the grounds (No) - Control of the respect of the rules of the law - Closing
the debats - New facts - Neglect them or put them back in a contradictory
debate.
Supreme court, Section 5,
Decision No 163/2001 of December 27, 2001 (Falcon Fast Shipping Company /
Kuwait Airlines Company).
Egyptian Case Law
- N° 1- Arbitration
- Parties - Attorney at Law - Not a party.
Court of
Appeal of
- N° 2- Arbitration
- Court decision to reject the lawsuit - Appeal - No return of the lawsuit to
the tribunal of First Instance - Appeal - Arbitration award - No mention of the
place where it was issued - Effect.
Court of Appeal of Cairo,
Commercial Section No 62, Decision No 8/1/1999 (Industrial and Enginneering
Projects Company / Maady company for Development & Construction).
- N° 3- Arbitration
- Lawsuit relating to the Constitution - Control - Arbitration -Litigation - Rejection - Freedom of
arbitration - Not mandatory.
High constitutional Court,
Decision of 6/11/1999 (Starco Company for Hotel & Tourism / AHS
International Company).
- N° 4- Arbitration
- Arbitration award - Annulment - Non-application of the law chosen governing
the substance of the dispute.
Court of Appeal of Cairo,
Commercial Section No 62, Decision of 5/1/2000 (City Flower Association for
Construction / Abd el Salam).
- N° 5- Arbitration
- Arbitration agreement - Independent agreement or arbitration clause - Before
or after the dispute has arisen - Necessity of precising the matters subjects
of the dispute - Expert report - One of the proof methods - Appreciation by the
arbitration panel.
- N° 6- Arbitration
- International commercial arbitration - Cairo Court of Appeal - Competence.
- N° 7- Arbitration
- Constitutionality - Principle of equality in front of the Law - Competence.
High Constitutional Court,
Decision of 6/1/2001 (Egypt International Hospital Company / Engineering
Company for Constructions).
N° 22
B- CASE LAW:
Lebanese Courts decisions
- N° 1- Commercial agency -
Arbitration clause - Exclusive agency -
Non demurrable - Competence of the Lebanese tribunal.
Termination of contract - Action for damages - Damages and interests -Revaluation with regard to the devaluation
of the lebanese pound - Profit index of the last three years.
Supreme Court, 4th section, n°°34/2001, of 19/7/2001 (
- N° 2- Arbitration - Special
Jurisdiction (No) - Arbitrators powers - Qualification of contract - Validity
(yes) - Arbitration award - Annulment request - Recourses - Decisions issued
during arbitration process - Recourse before delivery of the award (no) -
Minutes of hearings - Signature.
Drafting of the award - Allegations of the
parties - Location of their mention - Power of attorney - Appearance of the
parties - Recourse (yes).
Supreme court, 5th section, n° 19/2002, of 19/2/2002 (Rayess / Sakr)
- N° 3- Arbitration - Award -
Signature by the clerk (no) - Intervention
-Inadmissible - Restriction of arbitration to the parties.
Supreme court, 5th section, n° 21/2002, of 19/2/2002
(Rayess / Sakr and Atouι)
- N° 4- Arbitration - Exequatur -
Decision to grant it - Separate recourse against the award (no) - Recourse
against the arbitration award (yes) - Annulment of the award and the exequatur decision
simultaneously - No contestation of the validity of the decision which has
granted the exequatur - No nullity without damage - Party attending with its
representative - Power to submit to arbitration - Signature of the arbitration
agreement - No unilateral withdrawal - Statement - Its determination - Its negligence.
Award - Not mentioning all details - Sufficiency
of motivation - Signature and delivery of the award.
Supreme Court, 5th section, n° 22/2002, of 19/2/2002 (Abadi and Harakι / Pharaon)
- N° 5- Arbitration award -
Annulment request - Proportional tax (no) - Judicial connection - Plea -
Annulment of the arbitration agreement - Annulment of the award.
Court of appeal of Beirut, of 25/2/2002 (Chamoun / Chamoun)
- N° 6- Arbitration award -
Arbitrator - Son of the lawyer of a party - His independence -Challenge (no) - Nullity of the arbitration
agreement (no) - The arbitrator is not party in the arbitration agreement - No
necessity to inform the parties of the reason for challenge before the dispute
- Unnecessary.
Supreme court, 5th section, n° 29/2002, of 28/2/2002 (Jezzini / Hamdane)
- N° 7- Arbitration
- Arbitration clause - Reference to the new code of civil procedure - Name of
the arbitrator left blank - Competence of state courts to remove difficulties.
Supreme court, 5th section, n° 27/2002, of 28/2/2002 (Tabbah and Al-Jawaher / Boghossian)
Egyptian Case Law
- N° 1- Arbitration law - Its
application to agreements signed before its coming into force - Formation of
the arbitral tribunal - Causes of annulment of the award.
Court of appeal of Cairo, 50th commercial section, of 30/11/1999 (State
Affairs Commission / Kiroula Company)
- N° 2- Arbitration - Plea based on
the existence of an arbitration clause - In
limine litis - Annulment action - Causes - Conventional clause - Implied
desistance.
Court of appeal of Cairo, 7th commercial section, of 7/12/1999 (Mustapha
/ Sonbol)
- N° 3- Arbitration award - Causes
of annulment - Restrictive enumeration - Lack of signature of all the
arbitrators - Date of appointment of the arbitrator - Challenge - Arbitration clause - Autonomy (no)
Court of appeal of Cairo, 62d commercial section, of 5/4/2000
(Association for Housing Construction/ Sami Saad and Associates Company)
- N° 4- Arbitrability of
administrative contracts - Agreement of the competent minister - Procedure -
Definition of the administrative contract.
Court of appeal of Cairo, 62d commercial section, of 7/6/2000 (Cattle
Insurance Fund / Fanjari Company).
B- CASE LAW
FRENCH CASE LAW
1- Arbitration - Amount provisionally
allocated - Arbitration clause - Uncontested obligation - Exceptional
Competence - Condition - Urgency.
French Supreme Court, 2nd
Civil Section, June 13, 2002, (with the comments of Ibrahim NAJJAR) and March
7, 2002.
LEBANESE COURTS DECISIONS
N°1- Arbitration - Arbitration
award - Non-compliance with conditions of form - Nullity - Recourses -
Exequatur - Autonomy principle - Rejection of the claim - Claim accepted.
Supreme Court, 5th Section,
N° 24/2002, of June 25, 2002 (Anouar Alameddine / Ibrahim El Said Mohammad
Hussein Fadlallah & Co).
N°2- Arbitration - Hiring-business
managership - Remaining in the premises (No) - Expulsion - Arbitration clause -
Arbitration ex aequo et bono - Incompetence.
Metn Unique Civil Judge
deciding in lease matters - N° 50/2001 (Cecile Moussera / Melki & Kassis).
N°3- Cassation - Petition for
cassation - Annulment request - Lack of motivation and violation of the
stipulations of Article 537 of the New Code of Civil Procedure - Violation of
the defense rights - Arbitration ex aequo et bono - Arbitration award - Nullity of the
arbitration award.
Supreme Court, 5th Section,
25/6/2002 (Mourtada Hammoud, Abdallah Makri, Garabet Kalajian & Anouar El
Zouheiri / Nadim Abou Khater & heirs of Karnik Hanzoughian).
N°4- Arbitration - Arbitration
ex aequo et bono - Deliberation between arbitrators rule - Public Policy - Non
- Compliance - Nullity - Exequatur (No).
Beirut first instance
judge, 4th section, deciding in commercial matters, N° 1176/99/125 of June 8,
1999, (Kairouz / Kairouz).
N°5- Arbitration - Arbitration
ex aequo et bono - Discussion (deliberation) between arbitrators -
Non-compliance - Nullity - Litigation publication (art 801 NCCP).
Beirut Court of Appeal, 1st
section, of May 5, 2002, (Kairouz / Kairouz).
N°6- Arbitration - Institutional
arbitration - Objection against the arbitrator
-Period of limitation - Notification - Non observance of the rules
governing jurisdiction - Parties agreement - Arbitrator independence.
Arbitral tribunal attached
to the lebanese arbitration center, of 5/6/2002, (Mouawad Village Company and
associates).
N°7- Arbitration - Institutional
arbitration - Objection against the arbitrator
-First instance court jurisdiction - Effect of parties agreement -
Arbitration center - Corporate body - Arbitration organization - Grounds of
objection against the arbitrator - Restrictive interpretation - Lebanese
arbitration center.
Decision n° 46/74, of
23/8/2002, (
N°8- Arbitration - Arbitration in
accordance withe rules of law - Appeal against the award - Financial
institution - Commitment to establish a company for the acquisition of a land -
Establishment of the company (No) - Payment of the balance of the price -
Signature in favor of others (No) - Guarantor (No) -Personal covenant - Estoppel theory - Sham
mandate.
ARBITRAL AWARDS
Cairo Regional Center for International
Commercial Arbitration
- International Commercial Arbitration -
Lebanese-Egyptian Convention
-Arbitration clause - Dispute submitted to Arbitration - Arbitration
Procedure Hearings - Time-limits - Documents - Issues of procedure -
Arbitration language -
Exclusive agency - Renewal - Bilateral
convention of protection of the investments and applicable law - Legal opinion regarding
the bilateral convention - Accounting of the Regie - End of the exclusive
concession and indemnification - Assets of the Regie - Loss of profits and
debtors patrimonies - Premiums for production and export - Old yields - Future
yields of the administrator - Loss of the shares - Dividends - Moral
prejudice -Calculation mistake - Damages
caused by the Lebanese War and the Israeli Invasion - Indemnification of the
losses resulting from smuggling - Advice fees
- Arbitration expenses.
Case N° 165/2000 of June
20, 2000, (Cairo Regional Center for International Commercial Arbitration).
N° 24
B- CASE LAW
a- LEBANESE COURTS
DECISIONS
N°1- Arbitration - Lebanese
Arbitration Center - Arbitrator member of the arbitration Panel - Arbitration decision
- Date of issue - Presentation of the decision project - Breach of the law -
Annulment reason (No) - Motive
Desistance of arbitration - Special proxy.
(CA of Beirut, 3rd section,
n° 1628, 24/10/2000, Al Rawdan / Al Sokehbi).
N°2- Arbitration - Breach of the
law - Public policy - Principle of contradictory - Notification - Mandate of the arbitrator -
Judge - To decide on the requests
-Contradiction - Ground of appeal.
(Supreme Court, 5th
section, n° 132/2002, 29/10/2002, Morico TV Shopping/Supervision).
N°3- Arbitration - Interruption
of the process - Challenge of the arbitrator
-Recourse stopping the execution - Reception of the recourse.
(Supreme Court, 5th
section, n° 135/2002, 31/10/2002, Samira El Jabali/Albert Melki).
N°4- Absolute arbitration -
Contrary to the public policy - Equity - Justice -Arbitration panel - Mission - Article 800 of
the civil procedure code.
(Supreme Court, 5th
section, n° 136/2002, 31/10/2002, Al Zein and Al Moukaddam / Company for the
development and the exploitation).
N°5- Arbitration - Interim measures
- Article 589 NCCP - Definitive decision
-No - Court of appeal - Settlement of an aspect of the dispute.
(Supreme Court, 5th
section, n° 147/2002, 19/11/2002, Obeji Company / Mawassem Taanayel Company).
N°6- International arbitration -
Provisional advance - Lawsuit - Referee Judge.Interim measure - Constitution of
the arbitration panel (No) - Two guarantees (No).
(Referee Judge of
b- EGYPTIAN CASE LAW
N°1- Arbitration - Exceptional
recourse - Will of the parties - Domain of the convention of arbitration.
(Cairo CA, 63rd
commercial section, 22/2/1995, El Sheikh and Amara / El Sheikh and Younes).
N°2- Arbitration - Termination of
the mission of the arbitrator - By the tribunal
- Article 20 of the arbitration law - Nomination of the arbitrator.
(Cairo CA 63rd commercial
section, 19/11/1996, Lamer Holdings company/Siaj company for touristic
exploitation and hotels administration).
N°3- Arbitration - Decision -
Nullity - Article 512 of Pleadings Code - Order
-President of the administrative board - Convention on arbitration (No).
(Cairo CA, 63rd commercial section,
22/1/1997, Awad / Mrad, Awad / President of the administrative board of Delta
Bank).
N°4- Arbitration - Foreign
decision - Annulment - Non execution - Competence - Nullity of the
international commercial arbitration award.
(Cairo CA, 63rd commercial
section, 19/3/1997, Commercial company for exploitation / Bel Rover shipping
limited).
N°5- Arbitration - Arbitrators
- Qualities - Parties agreement - Exectution of the award.
(Cairo CA, 63rd commercial
section, 19/3/1997, Ocean Financial corporation / Beme Iran Insurance).
N°6- Constitutional Court -
Decision - Binding authority - Constitutionality of the decision (No) -
Inapplicability - Article 49 of the law n°48/1979 - Article 18 of the law of
Bank Faysal - Inapplicable.
(Cairo CA, 63rd commercial
section, 24/12/1997, Mohamad Abou Al Hassan Ahmad / Bank Faysal).
N°7- Arbitration - Decision -
Annulment - Non execution.
(Cairo
CA, 63rd commercial section, 21/1/1998, Al Maadi company for construction and
development / Al Mahmoudia company for enterprise).
N°8- Arbitration - Law
n°97/1983 - Arbitration panel - Compulsory arbitration- Company of public
workss sector - Procedural rules - Immediate effect - Annulment of the arbitration award -
Reasons.
(Cairo CA, 63rd commercial
section, 18/2/1998, Al Maadi company for construction and development / Al
Mahmoudia company for enterprise).
N°9- Foreign awards - New
Yorks convention - Pleadings Code - Execution of the foreign awards - Stricter
conditions - Objective procedural rules - Articles 297 and 298 of the Pleadings
Code - Arbitration law - Contradiction.
(Cairo CA, 63rd commercial
section, 17/2/1999, Razimbex company / Yasmina company).
N°10- Arbitration - Exceptional
recourse - Res judicata - Arbitrators - Number- Participation of all the arbitrators
- Date - Article 17 of the law n° 11/91
-Recourse to the judicial courts - Arbitration panel - Final decision -
Recourse to the court (No).
(Cairo CA, 63rd commercial
section, 21/4/1997, Adel Mohamad Jad / Minister of Finance).
N°11- Arbitration - Decision -
Substantial elements - Amicable settlement - Law n° 27/1994.
(Cairo CA, 91st commercial
section, 27/3/2002, Sayed Mabrouk Heirs / Ahmad Abdul Latif and co).
N°12- Contract - Silence of the
contracting party - Titular - Rights and obligations - Arbtiration - Article
52/1 of the arbitration law - Annulment recourse.
(Cairo CA, 63rd commercial
section, 23/4/1997, Epix Marine company / City Green company).
N°13- Arbitration - Arbitration
panel - Choice of the arbitrators - Court
-Conditions - Legal proceedings - Nomination of the arbitrator -
Recourse (No)-Public policy - Principle of contradiction - Annulment of the
arbitration award.
(
N°14- Arbitration - Challenge of
the arbitrator - Arbitration panel - 15 days
-Court of appeal - Challenge of the judge.
(
N°15- Arbitration - Decision -
Annulment request - Parties - Relativity of the procedures - Principle of the
relative effect of the contracts - Proof - Possessory action - Right -
Inoperative.
(Cairo CA, 91st commercial
section, 26/6/2002, Hussein Mohamad Abed.../ Ibrahim Kamal Seddik).
N°16- Arbitration - Arbitration
panel - Constitution - Nomination of the arbitrator - Court of Appeal - Order Issued on petition
- Recourse (No) - Principle of contradiction - Nullity of the constitution of
the arbitration panel - Nullity of the arbitration award.
(Cairo CA, 91st commercial
section, 26/6/2002, Al Nasr company / Abou el Foutouh company).
N°17- Arbitration - Decision -
Recourse - Annulment - Article 53 - Law n°27/94 - Appeal (No).
(Cairo CA, 91st commercial
section, 30/4/2002, Ali Mustapha Bayoumi / New horizon Association).
N°18- Arbitration - Order issued
on petition - End of procedures - To lodge a complaint - Same judge - Or -
Competent Court - Prohibition of cumulative procedures.
(Cairo CA, 91st
commercial section, 30/4/2002, Ayala Mideast limited / Cidari").
N° 25
B- CASE
LAW:
a-
LEBANESE COURTS DECISIONS RELATING TO ARBITRATION:
- N°1- Arbitration -
Arbitration panel - Qualification - Monetary and trade statute - Mediator -
Guarantee - Currency - Credit - Irrevocable proxy - Sale - No - Arbitration
clause - Obligatory force - Court of appeal - Motivation.
(Court of
cassation, 5th Section, decision n° 2/2003, 7/1/2003, Arab financial
enterprise / Mounib Saοkali).
- N°2- Arbitration -
Arbitration award - New law - Recourse - Immediate effect (No) - Challenge of
the arbitrator - Appeal (No) - Law n° 440/2002 - Article 770 NCCP.
(Court of
appeal of Beirut, 3rd Section, decision n° 6/2003, 7/1/2003, Al
Jbeily / Melki).
- N°3- Absolute
arbitration - Principle of contradictory - Its observance -Annulment -
Court of cassation - Office of the Court of appeal - Powers of the arbitrator -
Limitation - Article 801 NCCP.
(Court of
cassation, 5th Section, decision n° 11/2003, 21/1/2003, SGBL / Elias
Sarkis with the commentary of M. Abdo Ghossoub).
- N°4- Arbitration -
Arbitration award - Annulment - Decision of the court of Appeal - Subject to cassation
- Principle of contradictory - Explicit contract -Denaturing -
Interpretation of contracts.
(Court of
cassation, 5th section, decision n° 16/2003, 30/1/2003, Nasr /
Tabet).
- N°5- Arbitration -
Challenge of the arbitrator - Competence - Tribunal of 1st instance - Article
770 NCCP - Place - Obligatory competence - Tacit agreement.
(Court of
appeal of Beirut, 3rd section, decision n° 200/2003, 6/2/2003,
Khalifι / Abi Khalil and Sayegh).
- N°6- Arbitration -
Suspension of the arbitration - Explicit - Delay of arbitration -
Suspension - Legal reason - 6 months - Extension of time.
(Tribunal of
1st instance of Beirut, 1st section, decision n° 9/53, 3/3/2003,
Robert Wardι / Crιdit de Banque SAL).
- N°7- Arbitration -
Duration - Extension - Will of the parties - Appreciation of the judges
of substance - Ground for review by the Court of cassation - Articles not
respected - Action - Reject.
(Court of
cassation, 5th section, decision n° 40/2003, of 11/3/2003,
Constructors Group / Ghada, Ghaya, Aya Nawfal Elias).
- N°8- Arbitration -
Implicit extension of the delay - Agreement of the parties -Court of
appeal - Right of interpretation - Article 773 NCCP - Arbitration award -
Denaturing - Lack of legal basis (No) - Article 221 C.O.C. - Interpretation of contracts
- Independence of the arbitrator.
(Court of
cassation, 5th section, decision n° 41/2003, of 11/3/2003, Boustani
/ Dahdah).
- N°9- Absolute
arbitration - Compromise - Exequatur - Recourse (No) -Annulment request
(Yes) - Appeal - Recourse to ordinary tribunal - To desist from arbitration
(No) - Arbitrator - Request of the parties - Substance of the dispute (No).
(Court of
appeal of Beirut, 3rd section, decision n° 444/2003, of 27/3/2003,
Awad / Lebanese Maronits Friary).
b- ARAB
CASE-LAW
SULTANATE
OF OMAN
- N°1- Arbitration
award - Substantial elements (No) - Incompetence of the arbitrators (No) -
Nullity of the arbitration condition - Competence of ordinary courts.
(Commission for
settlement of commercial litigations, decision n° 39/89, of 4/2/1990).
- N°2-
(Commission for
settlement of commercial litigations, decision n° 701/89, of 19/2/1991).
- N°3- Principal
contract - Subcontract - Independence - Arbitration condition in the principal
contract - Reference in the subcontract (No) - Effect of the arbitration
condition (No) - Merchandise - Deterioration - Compensation by the company -
Liability of the carrier - Compensation by the carrier - Compensations
cumulation.
(Commission for
settlement of commercial litigations, decision n° 451/90, of 12/5/1991).
- N°4- Arbitration -
Exceptional recourse - Arbitration condition - Public policy (No) - Arbitration
convention - Interdiction for the tribunal to settle the dispute
-Incident intervention - Ordinary procedures - Valid in front of the
tribunal -Unfair competition - Compensation - Mandate - Sale of products
- Same region - Else than the mandatory.
(Commission for
settlement of commercial litigations, decision n° 180/92, of 16/12/1992).
- N°5- Arbitration
convention - Will of the parties - Recourse to the courts -Renunciation -
The arbitrator - No agreement - Recourse to the courts.
(Commission for
settlement of commercial litigations, decision n° 530/92, of 28/2/1993).
- N°6- Complicity
between the mandatory and the new mandatory - Challenge of the mandatory -
Joint liability - Compensation - Unfair competition -Compensation.
(Commission for
settlement of commercial litigations, decision n° 164/93, of 10/11/1993).
- N°7- Arbitration
convention - Will of the parties - Strict interpretation -Relative effect
of the arbitration - Arbitration condition - Obligatory - Respect of the
arbitration convention (No) - By the arbitrator - Exclusion of his
decision - Public policy (No) - Annulment of the arbitration award -
Original competence.
(Commission for
settlement of commercial litigations, decision n° 627/93, of 11/1/1994).
- N°8- Procedure pleas
- Before discussing the substance of the dispute - Transfer of debt -
Transmission of guarantees.
(Commission for
settlement of commercial litigations, decision n° 666/96, of 23/9/1997).
- N°9- Arbitration
condition - Public policy (No) - Principal contract - To insert (No) Transfer
- Agreement of the debtor (No).
(Court of
appeal, decision n° 168/97, of 4/11/1997).
- N°10- Explicit
contract - Interpretation (No) - Contrary to law - Agreement of the parties - Precision
of litigations - Arbitration awards - Recourse (No) -Annulment of the
arbitration award.
(Court of
appeal, decision n° 15/94, of 25/4/1994).
- N°11- Arbitration -
All litigations - Public policy (No) - Commercial representation law (Decree n°
26/77) - Commercial representation contract -Freedom of the parties.
(Commission for
settlement of commercial litigations, decision n° 716/96, of 15/10/1997).
- N°12- Arbitration
condition - Public policy (No) - Introduction - Ordinary procedures - Introduction
for the benefit of the justice - Right to desist from the enterprise contract -
Absolute (No) - A posteriori control - Competence of the tribunal of 1st
instance - Appeal (No).
(Court of
appeal, decisions n° 33/96 and 34/96 of 27/5/1996).
- N°13- Procedural law
- Annulment - Decision - Execution (No) - Application of the new law - Delay to
start proceedings (No) - Beginning - To put into force the law - Publication -
Arbitration - Agreement of the parties - Competence of the arbitration panel -
No - Suspension of arbitration proceedings - Competent tribunal.
(Court of
appeal, decision of 1/6/1998).
N°
26
ARBITRAL
CASE-LAW
- N°1- Arbitral
tribunal Award Time limit 6 months Extension of the time limit
Notification Opposability (no) Annulment Mission International Court of
Arbitration ICC Document Translation Objection (no) Continuation of
the arbitration.
(Paris court of
appeal, 1st chamber, section n° 63, March 6, 2003).
- N°2- Arbitration
International arbitral award Exequatur Award annulment request in Lebanon
Place of issuance Switzerland Institutional arbitration Arbitral
proccedings Rights of defense Assignment of a unique arbitrator instead of
three Silence and non-objection of one party Venue of arbitration Change
Notification Trial Absence of a party after having attended some hearings
Judgment by default Time limit for the appeal of the arbitral award
Special recourse Autonomy of the arbitration clause Bad faith Sentence.
(Beirut court
of appeal, 3rd section, n° 464, April 3, 2003, Dogmoch Group of Co.
S.A.L. / Executive Air Transport Ltd.).
B- JUDICIAL
CASE-LAW
a- LEBANESE
AWARDS
- N°1- Public
enterprise Subrogation of the Lebanese State Contract International arbitration
Lack of capacity and interest Intervention Arbitral lawsuit Breach of
contract Contractual fault Compensation.
(Arbitral award, Lebanese
Center of Arbitration, case n° 58/2000, June 7, 2002, Lebanese services company
Ltd, Al Khourafi company / Lebanese State, Ministry of public works and
transport).
- N°2- Arbitration
Time limit Article 773 NCCP Compensation Damage Proof Contradictory -
Evaluation of the compensation Judge of substance Final decision
Withdrawal of the recourse.
(Arbitral award,
b- COURTS
DECISIONS
- N°1- Decision Chairman
Representation of the company Annulment of the arbitration clause
Petition to the Supreme Court Dismissal.
(Supreme Court,
5th section, n° 143, November 20, 2001, Kobeiter industrial and
commercial company / Bsat company).
- N°2- Arbitrators
number Uneven Issue of the decision Unanimity Majority Public hearing
(no) Annulment (no) Closure of hearing Non respect of the rules Mission
of the arbitrators Impossibility of performance Dissolution Misuse
Remedies at law Annulment.
(Beirut court
of appeal, 3rd section, n° 1855/2001, December 20, 2001, Fouad Zein
and Gerges Maalouf / Construction and Exploitation company).
- N°3- Arbitration
Amount provisionnally allocated Arbitration award Place of issue Ground
for annulment (no) Article 800 NCCP Annulment (no) Subsidiary claim.
(Supreme Court,
5th section, n°6/2002, January 29, 2002).
- N°4- Challenge of the
arbitrator Appeal Double court instance New grounds Partiality
Parties at arbitration.
(North Lebanon
court of appeal, 6th section, n° 514/2002, May 9, 2002, Samir Abou
Rostom / Tony Tajer).
- N°5- Arbitration
Exequatur Annulment request in Lebanon Arbitration in front of a legal
person Procedure Rights of defense Nomination of one arbitrator Silence
of a party Venue of arbitration Change Notification Judgment by default
Time limit for the appeal Special recourse Autonomy of the arbitration
clause Bad faith Condemnation of the appellant.
(Beirut court
of appeal, 3rd section, n° 464, April 3, 2003, Dogmoch group of Co.
S.A.L. / Executive Air Transport Ltd.).
- N°6- Arbitration
clause Incompetence of the tribunals Appeal Opposability of the
arbitration clause Contract in solemn form New claim Inadmissible Clear
claims Expenses Judicial fees Proportional tax Incompetence Refund of
the fees paid.
(Mount Lebanon
court of appeal, 7th section, April 10, 2003, Inter radio S.A.L. /
Radio Delta Company S.A.L., Radio Delta, Media Partners Company S.A.L.).
- N°7- Arbitration
Commercial representation Decree n° 34/1967 Article 5 Recourse to
arbitration after the beginning of the litigation Allowed Arbitration award
Annulment claim Infra petita Civil procedure Arbitrator.
(Beirut court
of appeal, 3rd section, April 17, 2003, Mawassem Taanayel company /
Obegi company).
- N°8- Amiable
composition Justice and equity Equilibrium Legal reason Raised by
the arbitrator (no) Contradictory principle.
(Beirut court
of appeal, 3rd section, May 20, 2003, Al Richani / Fahd and Tayoun).
c- ARAB JUDICIAL
DECISIONS
EGYPT
- N°1- Arbitration
ICC Egyptian Law Arbitration award Debate between the arbitrators Law
n° 27/1994 (articles 40 and 43/1/491) Article 227 civil code Calculation of
interest Parties agreement Litigation.
(Cairo court of
appeal, 64th commercial section, July 30, 2001, Company for cement /
Dubtch Babcok, Underns, Sejlek and B.M.H.).
N° 28
FRENCH COURTS
DECISIONS
- N°1- International
arbitration Arbitration clause Transmission Transfer of debt Intuitu
personae character of the arbitration clause.
(French court
of cassation, 1st section, May 28, 2002, Burkinabe company for
cement and materials /
- N°2- Arbitration
agreement Validity Amiables compositeurs Annulment Judge
Regularity Fraud Annulment of the award Article 4 of the FCPP Schengen
agreement Agreement on the transfer of sentenced people Powers to
compromise.
(French
court of cassation, 1st section, n° 558 FSP, May 6, 2003, SOPIP /
ARESBANK AND CCG).
- N° 3- Arbitration
clause Arbitration agreement International No difference Nomination of
the arbitrator ATIBT rules Arbitration award Article 1502 of the NCCP
Annulment recourse Reject Confirmation of the award (no).
(Paris court of
appeal, 1st section, May 15, 2003, Central Timber Business / Best
Charity corporation).
B- CASE
LAW
a- ARBITRAL AWARDS
- N°1- Lease
Cancellation (no) Registration in the land register Promise to sale to an
association Personal right Absolute arbitration Equity rules Forfeiture
delays Suspension.
(Arbitration
award, M. Hassan Rifaat, January 17, 1994, TDH Lausanne / Mohammad Bassam El
Amine and spouse).