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 |
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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). |
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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 |
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64 |
11
-
Arbitrator - Challenge - Adjudication - Appellant not party - Statute of
limitation Bar. Court of Appeal of |
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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.) |
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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 |
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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 |
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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) |
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78 |
26
-
Annulement of an arbitral award - Apparent Proxy - Adversarial procedure.
Court of Appeal of |
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b/ International arbitration in
Lebanon |
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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). |
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81 |
29 - Exequatur - Arbitration clause - Admissibility
- Applicable law (Law of 1983) - Award based on previous law - Relative
effect. Court of Appeal of |
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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. ( |
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82 |
31 - Exequatur - Arbitration - Foreign award - Opposition - Effects - Suspension - Supreme Court, 2nd Section, Decision Number /13/ of 18/2/1993. (Eid Case). |
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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 |
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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 |
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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).
b- LEBANESE COURTS
DECISIONS
N°1- Acquisition of
ownership by strangers Public policy Lease with promise of sale Option to
purchase Absolute arbitration Extension of the option delay.
(Beirut court of appeal, 9th
section, n° 267/95, March 15, 1995, TDH / Mohammad El Amine and spouse).
- N°2- Arbitrator
Transaction Arbitration award Challenge of the arbitrator Surveillance of
the arbitrator (no)
(President of the tribunal of 1st
instance of Beirut, n°128/98, February 3, 1998, Amine Nassereddine / Zouheir
and Ahmad Mneimneh).
- N°3- Arbitration
Contract of employment Fixed term Two years Contract of indefinite
duration Retroactivity (yes) Preliminary notification Arbitration clause
Competence Preliminary desistance Nullity Lease Public policy
Better condition Benefit (yes).
(Labor arbitration council,
n°7/2004, January 8, 2003, Hoda Mouawad / CDR and UNDP).
- N°4- Arbitration
Arbitration award Time of issue Possible Publicity (no) Secret
President of the administrative board Election Competence Contradictory
principle Facts known by both parties Mandate Notification Appeal (no).
(Beirut court of appeal, 3rd
section, 1404/2003, October 9, 2003, Sheikh Tarek Al Nakib / T.M.A.).
- N°5- Arbitration
Donation Unworthiness Return of the property Right of defense Respect
Statement with new documents Reasons of annulment Reasons of appeal.
(Beirut court of appeal, 1399/2003,
Oct. 9, 2003, Kassouf / Stephan).
- N°6- Arbitration
Domain Implication of a third party Reject Refusal of the exequatur Notation
of the administrative board on the contract The president is not a party
Exequatur Refusal.
(Beirut court of appeal, 3rd
section, 1397/2003, Oct 9, 2003, Milad Yammine / Constram company).
- N°7- Arbitration
Arbitration award Motivation Requests of the parties Fact not related to
the solution Liability In appeal and not in annulment.
(Beirut court of appeal, 3rd
section, 1405/2003, Oct 9, 2003, Regivision company / Lebanese TV).
- N°8- Arbitration
award Sufficient reasoning Annulment (no) Contradictory requests Tacit
reject Rights of the third party Distribution of the expenses Right of
opposition Contract Non-execution Payment of the price (no).
(Beirut court of appeal, 3rd
section, 1398/2003, Oct 9, 2003, Holding company for investment / Rony Karam
and co).
C- ARAB COURTS DECISIONS
EGYPT
- N°1- Arbitration
award Nullity action Delay 90 days Public policy.
(Cairo court of appeal, 27/11/2002,
Mohammad Mahmoud Abdel Majid / Farek Fouad Ali Youssef).
- N°2- Judgment
Performance in kind Compensation Nullity action Appeal Arbitration
award Nullity Equality principle Arbitration board Material error
Correction Nullity of the erratum.
(Cairo court of appeal, 91st
commercial section, 27/11/2003, Egyptian company for tourism and hotels /
Hotels company (ACOR)).
- N°3- Arbitration contract Provision
Law rules Subject matter of the litigation Grounds of recourse Devolution
of the case-law n°27/1993 on arbitration Public policy Real estate
Partition.
(Cairo court of appeal, 91st
commercial section, 26/2/2003, Fahmi Ali Sleyman/Cooperative union for
housing).
- N°4- Notification
Nullity recourse Delay Arbitration procedure Contrary to a condition in
the arbitration agreement Silence Submission Nullity case Limitative
enumeration Powers of the annulment judge.
(Cairo court of appeal, 91st
commercial section, 26/2/2003, Elhami Al Zayyat / Hafnaoui Moustapha and
Sawssan Attar).
- N°5- Arbitration award
Nullity Omission of the name of the arbitrator Lease agreement
Applicable (no) Article 53 of the arbitration law n° 27/1994.
(Cairo court of appeal, 26/2/2003,
Majida Ahmad / Hilton company).
- N°6- Arbitration law
Annulment Nullity cases Limitative enumeration Powers of the court.
(Cairo court of appeal, 91st
section, 26/3/2003, Moustapha Soudki / Hilton company).
- N°7- Final decision
Appeal 91st commercial section No Reject of the action.
(Cairo court of appeal, 26/3/2003,
Memphis company / Medssi company, Ahmad Abdel Fattah).
- N°8- Incompetence Agreement of the
parties The contract is the law of the parties Litigation between a member
of the association and the association Arbitration agreement Nullity
Limitative enumeration.
(Cairo court of appeal, 26/3/2003,
Cooperative Union for the housing of employees of the Ministry of Foreign
Affairs / Mohammad Al Dib).
- N°9- Arbitration
Free will Nullity of the compromise Arbitration condition
(Cairo court of appeal, 29/4/2003,
Nizar Choucair / Akram Turki and Nasser Mohammad).
- N°10- Arbitration
Arbitration agreement Annulment Reasons limitatively enumerated.
(Cairo court of appeal, 28/5/2003,
Cooperative Union for the housing of employees of the Ministry of Labour and
Social Affairs / Talal Al Mathana).
N° 29
C- JUDICIAL CASE LAW
A-
FEDERAL COURT OF SWITZERLAND
- N°1- International arbitration
LDIP Formal criterion Arbitral tribunal Debate Essential Expert study
Express request Pertinent facts Federal tribunal Restricted control
Public policy Exclusion of proof Arbitration clause Extension to a
non-signatory party Good faith.
(Federal court of Switzerland,
October 16th, 2003, Triple M. Mouawad Management and Marketing
S.A.L., Mouawad Village Broumana and Robert Mouawad / Henco Heneine
construction and development Co. SARL).
- N°2- International arbitration
Revision of the award Federal court Competence (yes) Competence on the
merits Arbitral tribunal (yes) Admissibility of the claim New and
important facts Conclusive evidence.
(Federal court of Switzerland,
October 16th, 2003, Triple M. Mouawad Management and Marketing
S.A.L., Mouawad Village Broumana and Robert Mouawad / Henco Heneine
construction and development Co. SARL).
B- LEBANESE COURTS
DECISIONS
- N°1- Commercial
representation Arbitration (No) Decree n° 34/67 Compensation
Appreciation Criterion.
(Court of cassation, 4th
section, n° 8/2003, 20/2/2003, KOMHO co. / MADCO, Riad Choucair).
- N°2- Arbitration
Appointment of the arbitrator Appeal nullity Appointment modality
Nomination of the arbitrators by common agreement Obligation to try
President of the tribunal of 1st instance Decision Annulment.
(Beirut court of appeal, 3rd
section, n° 1749/2003, 11/12/2003, Charitys company / Elias Barda).
- N°3- Arbitral award
Forfeiture of the instance Forfeiture of the right (No) Final judgment No
recourse Multiple requests Link (No) Action Indivisibility of the
action Parties remarks Possibility Annulment.
(Beirut court of appeal, 3rd
section, n° 1800/2003, 18/12/2003, Lina El Hoss / Abdel Fattah El Hoss).
- N°4- Arbitration
Arbitration clause Contract Delictual liability Proxy Restrictive
explanation Special proxy Legal action Nullity CDR.
(Tribunal of 1st instance
of Beirut, 2nd section, n° 153/2004, 8/1/2004, CDR / Walter Bau
AG, Dyckerhoff and Widmann).
- N°5- Arbitration
Arbitral award Executive formula Official notification Submission (No)
Annulment formula Suspensive effect Arbitrators misconduct-Discussion of
the merits Contradictory principle Financial markets.
(Beirut court of appeal, 3rd
section, n° 132/2004, 22/1/2004, Fidus SAL / Dagher and Assaad Hayek).
- N°6 Arbitration Competence Mission
Extent Article 764 CCP Competence of states courts (No) After the
recourse to an arbitrator - Nomination of the arbitrator Arbitration clause
Res judicata.
(Tribunal of 1st instance
of
- N°7- Arbitration - Waiver of the right
of appeal Motivation of the award Discussion of the appeal Delay of
arbitration Public policy infringement Proof (No) Introduction of a third
party Admissibility of all parties Compensation.
(Beirut court of appeal, 3rd
section, 300/2004, 19/2/2004, Al torok alhadissa lelmoukawalat Co./Lebanese
Leasing company).
N° 30
FRENCH CASE LAW
- N°1- Arbitration clause
Economic transaction International character Contestation Arbitration
Stock exchange Financial canvassing International contract.
(France Supreme court, 1st
Civil Section, March 30, 2004, Sylvaine Gros / Painvewebber Co. and Salomon
Smith Barney Co., with the comments of Professor Ibrahim NAJJAR).
a- Lebanese Arbitral Awards
- N°1- Arbitration Limited liability company Arbitration in equity
Dissolution of the company Liquidation Minors heirs Preferential right
Only two partners.
(Arbitration award,
Professor Ibrahim NAJJAR, March 2, 2004, R.M. / A.A.N., P. and M.N. and A.N.,
with the enforcement order).
- N°2- Arbitration Arbitration clause Independence Nullity Arbitrators
competence State monopoly Exclusive distribution Obligations Impossible
object Validity Force majeure (no) Media Law n° 382/94
Non-retroactivity.
(Arbitration award, Judge
Sami AOUN, April 20, 2004, Interadio co. / Radio Delta and Radio Delta co.).
c- Lebanese Courts
Decisions
- N°1- Arbitration
Arbitration clause Assignment of a contract Substitution of the heirs of
the deceased Principle of due hearing of the parties.
(Beiruts court of appeal, 3rd
section, n° 763/2004, 29/4/2004, Khalil Ghezawi / Wafika Anouti).
- N°2- Arbitration
Bankruptcy Amicable settlement Representation Syndic Hearing of the the
bankrupt (no) Violation of the right to defense Denaturation of documents
Reason for setting aside the award Defect in the grounds of the award
Mission of the arbitrator Disrespect Violation of the public policy.
(Beirut court of appeal, 3rd
section, 29/4/2004, Bankruptcy of Khalil Ghezawi / Maroun Aziz).
- N°3- Arbitration Arbitrator
Dismissal Refusal of the application in the first instance Appeal (no).
(Beirut court of appeal, 3rd
section, n° 762/2004, 29/4/2004, Yemenja company / Ring Club company).
- N°4- Commercial
representation Arbitration clause Decree n°34/67 Signature of two
managers Signature of a memorandum after the end of the commercial
representation contract Duress (no) Accessory intervention Conditions
Partners in a corporation Rejection of the intervention Acknowledgment Indivisibility.
(Tribunal of 1st instance
of Mount-Lebanon, 2nd section, n° 20/2003, 31/7/2003, Gemaco
S.A.R.L. / Toyota Motor Corporation).
- N°5- Arbitration
Arbitration award Obligatory notes Annulment Cassation Against the
appeal decision Public policy Revision of the arbitration award (no).
(Court of cassation, 5th
section, n°127, 25/7/2003, Ghassan Awad / Lebanese Maronite Monks ).
- N°6- Arbitration
Arbitration award Appeal and nullity request Competence Place of delivery
of the award Damages.
(Beirut court of appeal, 3rd
section, n°388, 4/3/2004, Essaaf Chaker / Abou Chedid and Co.).
- N°7- Arbitration
Suit Interim measures Article 537 CCP Duty to state the grounds Term of
the company Three years Arbitration request.
(Supreme court, 5th
section, n°160, 20/11/2003, Chemical products company / Prime investment
holding, Selim Essaily and co.).
- N°8- Arbitration
Arbitrator Dismissal Contract of arbitrator Disappearance Arbitration
award Non-existence.
(Supreme court, 5th
section, n°60, 1/4/2004, Jbeily / Syriac Catholic Patriarchate).
- N°9- Arbitration
Arbitration award Nullity Competence of the courts Mission of the
arbitrator Compensation Evaluation Control of the Supreme Court (no)
Stating the grounds Rights of defense Principle of due hearing of the
parties Promise of sale Delivery Delay Loss of profits.
(Beirut court of appeal, 3rd
section, n°1236/2000, 16/11/2000, Solidere / Lebanese company for hotels).
- N°10- Arbitration
Recourse by a person not party to the action Third party Conditions
Arbitration award Arbitration agreement Representation Absence of power
of the representative Defect Correction Ratification by the presence of
the representative Interest.
(Tribunal of 1st instance
of Beirut, 20/1/2003, Harb and Karaouni / Harb, Mrad, Kobeissi and Sabra).
- N°11- Arbitration
clause Annulment request Valid contract Fictitious contract Arbitration
award Arbitration agreement (no) Association of Engineers Organization of
the arbitration.
(North court of appeal, 6th
section, n°505, 15/5/2003, Adnan Merhebi / Joseph Hreiky).
- N°12- Arbitration
Judge of Urgent Causes Provisional judgment Compatible with the will of the
parties Bankruptcy procedure Investment Impossible Debt that may not be
seriously contested.
(Judge of Urgent Causes of Beirut,
n°443, 12/11/2002, National Network of Transmission/ Ideal Home & co.).
- N°13- Arbitration clause
Written Main contract Accessory contract -Contract of 1994 Extension of
the arbitration clause Competence of ordinary courts (no).
(Tribunal of 1st instance
of
B- CASE-LAW
a-
Lebanese Courts Decisions
NΊ1- Arbitration Arbitration clause Arbitration deadline Extension
Arbitration panel Composition Impossibility Nomination of a third
arbitrator Possible.
(Pdt Tribunal of 1st Instance of Beirut, nΊ 3/51, 31/1/2003, General Company
for Construction and Investment S.A.L. / Kamal Abdallah).
NΊ2- Arbitration Case in deliberation New claims (no) To join the
arbitration file (no) Arbitrator Fees Determination - Recourse against
the arbitration award only Not possible Rights of defense Deadline for -
defense.
(Tribunal of 1st Instance of Beirut, nΊ 6/39, 28/1/2004, Kamal Abdallah /
General Company for Construction and Investment S.A.L.).
NΊ3- Arbitration Composition of the Arbitral Panel Nomination of the
arbitrator Acceptance Extension of the deadline of arbitration Court.
(Chairman of the Tribunal of 1st Instance of Beirut, nΊ 26/50, 28/4/2004,
General Company for Construction and Investment S.A.L. / Kamal Abdallah).
NΊ4- Institutional Arbitration Lebanese Center for Arbitration Rules of
Arbitration Arbitration panel or sole arbitrator Arbitration Deadline
Extension Acceptance by the two parties - Arbitration Rules of the Center
Specific Power of Attorney Estoppel theory Translation of documents (no)
Respect of the rights of defense Secret deliberation.
(Beirut Court of Appeal, 3rd Section, Chairman Marwan Karkabi, 13/5/2004, Fouad
Gerges & Co / Zoom Company).
NΊ5- Arbitration Arbitration award Members and Political Party Opposition
by a third person Rejection Common interest of the members - Interest of
the Party.
(Beirut Court of Appeal, nΊ 165/2004, 27/5/2004, Mohamad Harb & Co / Omar
Harb & Co).
NΊ6- Arbitrator Challenge Appeal (no).
(Beirut Court of Appeal, Chairman Marwan Karkabi, nΊ 1213/2004, 24/6/2004,
Kamal Abdallah / The Arbitration Panel composed of M. Adnan Jaafar, Mazen Taj
El Din and Abdel Rahman Kambriss).
NΊ7- Arbitration Arbitration award Enforcement order Arbitration panel
Deliberation Dissent Award draft.
(Chairman of the Tribunal of 1st Instance of Beirut, 29/7/2004, Heneineh
Company for Enterprises and Construction Henco).
b-
Arab Courts Decisions
EGYPT
NΊ1- International arbitration Operation and Management Contract of a Hotel
Award Signature Reasons of the absence of any signature Divergent
opinions Article 43/1 of the Law nΊ 27/94 Article 31/1 of the UNCITRAL
Model Law of Arbitration Recourse Annulment Reasons restrictively
enumerated - Judge of annulment Not the judge of appeal.
(
NΊ2- Arbitration Arbitration agreement Autonomy Law nΊ 27/1994 Its
application in time All arbitrations pending at the time of its
implementation Arbitrator designated by the court Freedom of choice.
(Cairo Court of Appeal, 91st Commercial Section, 27/11/2002, Servieh Company
for Industries - Egypt / Center of Studies and Engineering Designs).
NΊ3- Arbitration Enterprise contract Law nΊ 27/1994 Conflict of laws
Application of the new law in time Arbitration award Facts misunderstood
Annulment of the arbitration award (no) Violation of the law Article 512 of
the Civil Procedure Code.
(Cairo Court of Appeal, 91st Commercial Section, 30/12/2002, Al Tamas / Sobhi
Hussein Ahmad Company for Enterprises).
NΊ4- Arbitration Arbitration award Nullity reasons restrictively enumerated
Reexamination of the dispute matter (no) - Sale - Transfer of the property
Obligations of seller Mandate to arbitrate Specific.
(Cairo Court of Appeal, 91st Commercial Section, 30/12/2002, Cooperative for
Construction and Housing of Officers Working for the Police Academy / Mohamad
Hussein Fehmi).
NΊ5- International arbitration Arbitration award of the Cairo Regional Center
of International Commercial Arbitration Distribution and commercial
representation contract Competence of the judge for arbitration Conditions
Arbitration award Nullity recourse Different from the appeal Article
53/2 Nullity reasons restrictively enumerated.
(Cairo Court of Appeal, 91st Commercial Section, 29/1/2003, Asia Brown Bovery
Co / AMCO Co., with the commentary of Nathalie NAJJAR).
NΊ6- International arbitration Arbitration law Persons of private law and
of public law - Law nΊ 27/1994 Annulment Incompetence of the Egyptian
courts Decision of the Arbitral Tribunal of Danemark.
(
NΊ7- International arbitration Law nΊ 27/1994 New York Convention Members
States Authority of the enforcement order Recognition and enforcement of
the judgment Foreign arbitration awards State of issuance of the award
Arbitration award issued by the Diwan Al Mazalem of the Saudi Arabia Kingdom
Limited Liability Company Agreement.
(Cairo Court of Appeal, 91st Commercial Section, 26/2/2003, General Company for
Enterprise / Abdel Rahman Charbatly).
NΊ8- International arbitration Arbitration law Territorial competence
Non- competence of Egyptian Courts for setting aside an international
arbitration award issued abroad - Agreement of the parties Arbitration awards
Annulment procedure.
(Cairo Court of Appeal, 91st Commercial Section, 26/3/2003, Company for
Electrical Industries in the Industrial Zone/ Faj Henwa Berenger Corporation,
with the commentary of Nathalie NAJJAR).
UNITED ARAB EMIRATES
NΊ1- Arbitration Arbitration Award Right result Supreme Court Cassation
(no) Nomination of the arbitrator Arbitration proceedings Arbitration
award Civil Procedure Code Annulment Material errors.
(Federal High Court, Chairman Al Husseini Al Kanani, 31/2/2000, Recourse nΊ9 of
the 20th judicial year).
NΊ2- Arbitration Capacity Court deciding on the substance of the dispute
Powers Lawsuit Right to sue.
(Federal High Court, Chairman Abdel Wahab Abdoul, Recourse nΊ 605 of the 21st
judicial year).
NΊ3- Arbitration Enterprise contract Competence Arbitration proceedings
Lawsuit.
(Federal High Court, Chairman Abdel Wahab Abdoul, Recourse nΊ 449 of the 21st
judicial year).
NΊ4- Court deciding on the substance of the dispute Powers Proof
Arbitration Companies.
(Federal High Court, Chairman Abdel Wahab Abdoul, Recourse nΊ 719 of the 4th
judicial year).
NΊ5- Foreign arbitration Arbitration award Execution Foreign law.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ17 of the
year 2001).
NΊ6- Lawsuit Admissibility Quality Arbitration.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ31 of the
year 2001).
NΊ7- Arbitration Arbitration award Requirement of a copy of the arbitration
agreement Inclusion of the text of the agreement itself Not necessary
Possibility to prove its content in another way, without contradicting its
sense.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ88 of the
year 2001).
NΊ8- Arbitration Advocating Power of Attorney.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ112 of the
year 2001).
NΊ9- Arbitration Admissibility of a recourse against an arbitration award
Cassation Appeal Contract Nature Amendment Enterprise contract
Arbitration clause.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ130 of the
year 2001).
NΊ10- Arbitration Challenge of the arbitrator Arbitration clause
Violation.
(Dubaο Supreme Court, Chairman Mohammad Mahmoud Rassem, Recourse nΊ250 of the
year 2001).
NΊ11- Competence Judgment Recourse Cassation - Inadmissibility of
recourse against certain decisions - Proceedings of cassation - Arbitration
Competence Enterprise contract Import.
(Federal High Court, Chairman Mounir Toufic Saleh, Recourse nΊ84 of the 22nd
judicial year).
NΊ12- Arbitration Arbitration clause Cassation - Admissibility of recourse
against arbitration awards - Court deciding on the substance of the dispute -
Contract Explanation Sale Enterprises.
(Federal High Court, Chairman Mohammad Abdel Kader Al Salti, Recourse nΊ 333 of
the 23rd judicial year).
NΊ13- Arbitration Annulment of the arbitration award Arbitration
proceedings.
(Federal High Court, Chairman Mohammad Abdel Kader Al Salti, Recourse nΊ 22 of
the 22nd judicial year).
NΊ14- Arbitration Agreement Capacity Contract Legal successor
Arbitrator Declinatory plea Arbitration panel Counter-claim Conditions
Real Estate properties Registration Annulment Retroactive effect.
(Arbitration Panel composed of Dr. Hassan Al Hamadi and Mr. Saoud Al Ali,
21/8/2004, Al Assima Service Company / Heirs of Thani Rached Al Rmaythi).
B- CASE-LAW
a- Lebanese Courts Decisions
N°1- Arbitration Disputes between
spouses Apartments donation Funds origin Arbitration award Partial
acceptance by the arbitrator Recourse of both parties Rightful Nullity.
(Court of cassation, 5th
section, n° 120/2004, 13/7/2004, Hala Al Kassouf / Elie Stephan).
N°2- Arbitration Arbitration award
Grounds for review by the Court of cassation Rights of defense Principle of
due hearing of the parties Validity of the arbitration clause To plead
judicially Impossibility Good faith.
(Court of cassation, 5th
section, n° 126/2004, 26/8/2004, Dogmoch Group SAL / Executive Air Transport).
N°3- International arbitration Object
of the litigation Petition to challenge the arbitrator in Lebanon Civil
Procedure Code inapplicable Concerning domestic arbitration Absence
of any link between international arbitration abroad and Lebanon Nationality
of the parties and of the arbitrator No incidence.
(Tribunal of 1st instance
of Beirut, 1st section, n° 42/75, 4/10/2004, Muhieddine Ghandour /
Saadi Ghandour).
N°4- Arbitration Special proxy
Distinction between ad hoc arbitration and ordinary arbitration (no) Ex
aequo et bono Violation Recourse to arbitration Confidentiality
Extension of the deadline of arbitration Company Unanimity principle
Concerns only the arbitration recourse Arbitration clause The execution
concerns the non-execution and the bad execution.
(Beirut court of appeal, 3rd
section, n° 1712/2004, 14/10/2004, Segel group company / Construction projects
company).
N°5- Arbitration Arbitrator
Challenge Principle of due hearing of the parties Defense rights
Claims of the parties Neglected claim - To settle it Public hearing
Nullity.
(Beirut court of appeal, 3rd
section, n° 1711/2004, 14/10/2004, Bassem Al Kaissi / International company for
trade and exploitation).
N°6- Arbitration Lease contract
Arbitration award Brief motivation Sufficient and decisive.
(Beirut court of appeal, 3rd
section, n° 1716/2004, 14/10/2004, Solidere Company / Golden Rock and Ahmad
Labdi Company).
N°7- Arbitration Arbitration clause
Nullity Causes of nullity Restrictively stated Defenses rights
Respected.
(Beirut court of appeal, 3rd
section, n° 1713/2004, 14/10/2004, Bachaalany Company for Industry / Lebanese
Company for
leasing).
N°8- Arbitration Arbitration award
Recourse Nullity Introduction Party to the dispute Arbitrator
Competence Nullity of the contract Validity of the clause Parties
agreement Defenses rights Compulsory mentions Freedom of the arbitrator.
(Beirut court of appeal, 3rd
section, n° 1714/2004, 14/10/2004, Joseph Germani/ Clara Berberini and co).
N°9- Arbitration Lease contract
UNRWA Diplomatic immunity Arbitration clause Leases exceptional
legislation Right to resort to justice Superiority over public policy.
(Beirut court of appeal, 3rd
section, n° 1815/2004, 21/10/2004, Mohammad Al Ghenj / UNRWA).
b- Egyptian case-law
N°1- Arbitration Arbitration agreement
After the occurrence of the dispute Matters to be included in the
arbitration Nullity of the arbitration award.
(Cairo court of appeal, 91st
commercial section, 29/1/2003, Maher Atallah / Abdel Tawab Said and Fares Said).
N°2- Special arbitration Judges
competence Restrictive Interpretation of the law Conformity with
the Constitution Arbitral panel Nomination of the arbitrators Qualities
of the arbitrator Decision designating the arbitrator No recourse
Insurance policy Limits of the arbitration agreement - Overruled
Nullity of the award Arbitral award Cairo Regional Center for International
Commercial Arbitration Intervention request Rejected.
(Cairo court of appeal, 91st commercial section, 26/2/2003, Al Ahlia insurance company / Sociιtι Gιnιrale Bank).