SUMMARY OF FOREWORD
This law journal of arbitration is published in Lebanon, and hopes to benefit from the legal tradition of a country standing at the crossroads of the Gulf and the Mediterranean.
It is a journal which is written, in the main, in Arabic, so that the nascent world of arbitration in the Arab world benefits from a serious and open forum of learned discussion in a field which should thrive on the propensity towards arbitration of the Islamic legal tradition. Here, the confines of arbitration are much less limited than in the western world, where judges tend to look with awe and distrust at the operation of arbitration outside the narrow civil and commercial legal fields.But the journal will also include extensive summaries in French and in English so that it can also be of use to the wider world, and offer, from Lebanon, a serious and regular scholarly home for Arab arbitration.
It is hoped that the Journal will be published regularly, though with different rhythms ( annually to cover cases, quarterly for reviews and articles). Its launch owes to the hard work and the trust of several world authorities in the law of arbitration, inside the Board of patrons and in the Journal's editorial Committee.
The Journal intends to cover five main areas, of practical as well as scholarly benefit: the first comprises articles and case-note reviews. The second includes the cases themselves, whether judgments or arbitral awards in Lebanon and other Arab jurisdictions. The third part includes relevant legislation and statutes. The fourth will provide news on arbitration, including past and future conferences and meetings. The fifth part will eventually offer a bibliography, as the scholarship in the field will no doubt be considerably enriched in time. These five parts will be supplemented by an analytical summary as well as an index in Arabic, English and French, with references to D ( doctrine, ie articles in part 1), Leg ( for legislation and statues, part 3,) A(Actuality and news, part 4) and B ( Bibliography , part 5). In the absence of a specific letter, reference is to the second part on cases and awards.
The journal hopes to cover authoritatively the most important areas in this new and important field, and looks forward to its readers' feedback and commentaries.
This second issue of the Review* is a one-time volume, which
is less voluminous and less jurisprudential' than the annual issue. The annual
issue will be consecrated, as previously announced, to a comprehensive review
of case-law in Lebanon and in the Arab countries.
We have however endeavored to see the part on 'Doctrine'
focusing on the Arab Gulf countries, as well as on Jordan, Egypt and Syria. In
addition, as an opening to Europe, we have published in the 'Legislation'
section the UK 1996 Arbitration Act. The Act will be soon discussed in the
Review, in French, by Eric ROBINE, a well-known author in the field of the
comparative law of international arbitration.
Thanks to the friends of the Review and members on its
Committee of Patrons, we have been able to publish the French proceedings of
the Seminar of Damascus of 5 - 8 October 1996, which was organized by the
leading authorities of legal Francophony. We are also including, in the secton
on the 'News on Arbitration' , the text of a multidisciplinary Convention
between, on the one hand, the university of Paris 2 and the Paris Bar and, on
the other hand, the university of Harvard. The Damascus proceedings and the
Convention deal with the setting up of alternative dispute resolutions (ADR).
Thus will arbitration serve as a lever and principal vehicle for these
alternative modes which are increasingly successful in Japan, Canada and the
USA.
Next issue will be consecrates to the multi-lingual
proceedings of the Euro-Arab Arbitration Congress, which was organizes in
Beirut, on 17 - 19 December 1996, by the Lebanese Association for Arbitration
and the Arab Association for International Arbitration (France).
We will keep up our efforts, with the hope that the quantity
of the contributions and the advertisements by which the Review is being
enriched, help sustain a now well-establishes Review... of friendship.
Ibrahim NAJJAR
This volume of the journal comprises essentially the reports
(multilingual) of the Euro-Arab Arbitration Conference organized between the
17th and the 19th December 1996 in BEIRUT, by the Lebanese Arbitration
Association and the Arab international Arbitration Association.
That Conference, organizes under the patronage of the
President of the Republic, of five Lebanese universities and the General
Secretary of the Arab League, has been preceded by a ceremony during which two
protocols of cooperation has been signed by Kuwaiti Ministry of Justice and the
other with the Cairo Regional Center of international Commercial Arbitration.
The synthesis report, drafted by Mr. Yves Guyon, in French,
has been published in the French part; while the recommendations, adopted in
Arabic, have been published in the Arabic part of the journal. Only the
Analytical index, which shall be reserved to the Case Law to be published in
the next volume.
Hoping that the Review will satisfy the needs that it has
targeted, we undertake to publish even more important unpublished contributions
in an Arab World which is more open to arbitration as a complementary source of
its international law.
Ibrahim NAJJAR
This issue focuses on news. Lebanon has signed and joined
the New York 1958 Convention on Arbitration. Furthermore the Lebanese Syrian judicial
protocole of 1951 was modidied in 1997, so a preliminary commentary of the new
provisions on arbitration and the enforcement of the awards was useful. On the
other hand this Review is having a renewes interest in the World Trade rules as
well as in the laws of Bahrein and the Egyptian Arab Republic.
More importantly, but not without some hesitation, we have
taken the risk of publishing a commentary of the 520/96 bill of law on the
Lebanese fiduciary contracts, in which Lebanon provides more guaranties for the
foreign investor in the Lebanese capital markets and the portfolio management
operations. Lebanon is trying to attract Arab cash flow and investors. In spite
of the obvious lack of relations between arbitration and fiduciary accounts, we
know that those who are involved in arbitration deal with the financial
products and, therefore, would like to find in their Review a new commentary on
an outstanding bill of law.
The next fifth and sixth issues of this Review will be
compelling the reports and work papers that have been available during the
international conference that was held in Kuwait city on 27 - 29th April 1997.
But after that, in the seventh issue, awards, precedents, case law and
jurisprudence will be on the spot again.
Ibrahim NAJJAR
Rarely has a seminar brought together, as in Kuwait City
from the 27th to the 29th of April 1997, so many communications and written
reports on Euro-Arab arbitration. Domestic and international arbitration is
highly respected by the State of Kuwait, where it has been elevated to the
level of official institution within the administration, and is now an integral
part of the Ministry of Justice.
This mixture of state and institutional arbitration might be
surprising, considering also that arbitral poceedings are heavily regulated.
This should not obscure the immense advances made by Arab arbitration.
The spectacular opening of Kuwait to the field of
arbitration also mets the spirit of numerous other Arab statutes which were
recently added to the world of international arbitration.
This phenomenon was favored by the Unites Nations'
establishment of a model-law on international trade arbitration, but also by
the urgency of foreign investors' and companies' needs.
Following the resolutions of the seminar at Kuwait City, our
Review is presently publishing the Acts of that meeting. This trilingual
publication takes note of the diversity in inspiration of the reports presented
at the conference, but only the French studies have been summarized in Arabic.
This is indicative of the international trend reaching our region, as the Arab
world, which is bilingual in the legal field, is predominantly affected by
English
Many French-speaking contributors are aware of the
phenomenon, who have indeed made their presentation in English. This is
incidental to our Review. It is however clear that international arbitration
calls for a multi-linguism that was an acknowledge and support in 'the Arab
world'.
The next issue will deal with case law and with Arab and
international arbitral awards, and with the newly published relevant statute.
The ways of arbitration are being followed through...
Ibrahim NAJJAR
The present issue is consecrated to current case-law. It includes
Lebanese, as well as Arab, awards and court decisions. Jordan, the Unites Arab
Emirates, Tunisia, Qatar and Egypt are thus represented next to Lebanon. As
initiated in the first issues of the journal, multilingual indexes
(chronological, alphabetical and thematic) are proposed. They also appear on
the Internet site, and will give some indication of the importance or frailty
of arbitral awards, as well as the evolution of case-law in favor, or against,
the recourse to arbitration.
Unlike the first issue however, we are now publishing,
together with the full decisions which we consider significant, the legal
rationale which are relevant to arbitration law. Thus we hope to let the
scholars themselves appreciate the decisions and the quality of their reasoning.
More ambitiously, some Arab centers for international
arbitration seem to be bent on producing new journals. It is hoped our
solipsism will not be one-faceted anymore.
On the other hand, this Journal, and the whole field of
arbitration, have just lost one of the most distinguished jurists of the second
half of the 20th century: Bruno Oppetit. Bruno Oppetit, who had
enthusiastically agreed to join the board of the Journal, died in the wake of a
protracted illness, which he confronted with awareness for the value of law's
permanence and universality. Bruno Oppetit had understood and accepted these
values, and he had insisted on completing, just before his departure, two books
which were important to him. One of them is consecrated to a reflection on the
philosophy of law.
In testimony of loyalty to him, Bruno Oppetit will continue
to figure, together with the other friends of this Journal, as an integral part
of the Board of patrons. Loyalty cannot be conceived outside of permanence.
Ibrahim NAJJAR
After having published, in the seventh issue of our Review,
nearly 37 decisions and awards concerning arbitration in Lebanon and in Arab
countries, we are pleased to present, in this eighth issue, a number of
articles and legislations or Arbitration Rules. The said collection concerns,
practically, a dozen of Arab countries, from Tunisia to the Sultanate of Oman,
passing by Egypt and Syria. In addition, a comparative law study shows the
intersts of the Anglo-American procedure known under the name of
"disclosure", because of its incidences, sometimes certain, in the
field of arbitration procedure.
Rarely a private review would have been as open on Arab
countries in general and on domestic and international arbitration in these
countries.
Moreover, pursuant to a decision taken from the beginning of
the publication of the Review, in 1996, the Web pages containing the summaries
shall soon be edited in Arabic, for the need of Arab researchers present abroad
who would like to consult the references in their mother language - which
requires, as one knows, an appropriate computer program. The delays concerning
Arabic language have been only caused by the difficulties of commercialization
of the Arabic editions on the Web.
We wish to thank here the authors and the readers of the
various Arab countries, who are addressing to us legal articles, as well as
decisions and awards, for their fidelity. It is partly through this cooperation
that the Review is building its network of competence and friendship.
This Review shall gain even more in quality and efficiency
when the said decisions and awards shall be systematically commented. We are
working on that. That suppose an availability and perseverance that only true
legal researches have, with passion and rigor.
A constancy that we promise you to continue to show.
Ibrahim NAJJAR
The ninth volume of our review is characterizes by the
importance given to the recent decisions as well as to Lebanese arbitration
awards, domestic as well as international.
This presentation is in derogation with our original
intention to publish arbitration awards only once a year.
We would like to precise, for preventing any confusions,
that arbitration awards which are the subject of court proceedings and
concerning which a court decision is made, become because of that public and
are not any more the sole property of the parties, which allow them to be
published (art.4, par.3. of the law No 75/99 on protection of intellectual and
artistic rights).
Concerning the awards which are not subject of a public
debate in front of the courts, we shall not mention the name of the parties for
preserving the secret... Nevertheless, we shall not apply this rule when one of
the parties or the arbitration tribunal authorize us to publish the award.
On another level, our Review has the pleasure to celebrate
in its own way the nomination of one of the members of its Exclusive Board, Dr
Hamzé HADDAD, as the keeper of the Seals in the Hashemite Kingdom of Jordan. W
shall then have the honor to have him in the Editorial Board of this Review.
With the remarkable progress made by arbitration in Lebanon
and in the Middle East, and with the trust, continuously renewes, granted to
it, legislative and judicial evets has happened in the Arab countries,
converging with the interests of the international business.
This Review is working on gathering what relates to
arbitration and to publish it, trying to contribute to the opening and nearing
of the legal systems.
Are published:
I - Legal articles in Arabic, French and , English, written
by several authors, Arabs or awards.
II - Arbitration awards, domestic and international, as well
as Lebanese and Arab awards.
III - The most important Arab and foreign legislations, the
rules of Arbitration in the Arab countries and in comparative law, as well as
the Rules of Arbitration regulating the Centers of Resolution of the
international business disputes.
IV - The news and events of arbitration, as well as a list
of publications (Bibliography) in Arabic, French and English. Special issues
are also made concerning seminars and specific subjects, for informing the
readers about the developments of arbitration and all its news.
It should be mentioned, in addition, that the summaries of
our Review are, since three years already, published on internet in three
languages; those who are interested by them may consult them on:
http://www.dm.net.lb/rla.
The following articles, decisions and awards have been
already published in our nine volumes.
volume 1includes decisions and articles concerning : -
Control on arbitral awards.
- Dispute resolution methods in procurement goods law of
civil and commercial arbitration.
- Arbitration in the Sultanate of Oman.
- The new Egyptian law.
- Arbitration law in Tunisia.
- The arbitration clause in international agency.
volume2 is particularly focused on:
- The conference on arbitration matters in the Arab Gulf
Countries Cooperation :Council
- Enforcement of foreign court decisions and foreign
arbitral awards in jordadian law
- Lebanese case law
- Legislation and arbitration rules
- Damascus conference on ADR
- UK arbitration Act (96).
volume 3 is consecrated on the works of the Euro
-Arab Arbitration Seminar.
volume 4 publishes articles concerning:
- Fiduciart accounts in Lebanon, the amendment of the
Lebanese/Syrian convention
- The standard arbitration agreement
- Disputes resolutions under New York 1958 conventions and
UNCITRAL
- Disputes resolution under the FIDIC conditions of
contract...
volume 5 and 6 includes the works of the important Kuwait
international seminar on international business arbitration (April 1997).
volume 7 publishes several arbitration awards from Lebanon
and Arab countries.
volume 8 includes, in addition to several articles
concerning most of the arbitration events in all the Arab countries, the laws
and rules of arbitration in the Arab countries and the ICC.
A special volume is consecrated to the study of the New York
convention of 1958 by Abdel Hamid el Ahdab.
Thus, aiming to give to the readers an overview of the
events and news of arbitration, and hoping that this Review shall facilitate
the exchanges between lawyers of Arab and Western countries, it shall be a
pleasure for us to receive and to publish information, decisions and
arbitration awards.
An effort for making critical comments of the decisions and
arbitration awards published should be of course made, but it supposes that an
arbitration culture be already anchored in the tradition.
We are acting on that.
Ibrahim NAJJAR
The tenth volume of the Review is consecrated partly to the
publication of the works of the seminar organized, in Beirut, by the
Association of the Chartered Accountants Certified in Lebanon, on March 4,
1999. The theme of the said seminar was Commercial Arbitration and Chartered
Accounting.
Furthermore, in the present volume have also been published
legal articles, court decisions and arbitration awards, as well as Arab and
international regulations. Thus, we publish, in French, the text of the New
York Convention of 1958, because the official Lebanese version has been the
subject of controversies.
The Review shall publish the works of the Tunis Seminar
concerning the economic transformations and domestic and international arbitration,
held in Tunis on April 26 and 27, 1999, according to the final recommendations
of the seminar.
We remind our readers and subscribers, for clarification
purposes, that this Review is a quarterly publication.
Published for the first time during the summer of 1996, the
periodicity of the Review has only become regular in 1997. For that reason, we
have modified the date of the volumes in a way, for example, to have the
volumes 9 to 12 for the year 1999, while the volumes 5 to 8 are for the year
1998.
Such numbering shall continue to be applied in the future.
The eleventh volume comprises two major issues: the first
focuses on the law of the Kingdom of Jordan, which seems ready to adopt rules,
in October 1999, that are similar to the CNUDCI rules of 1985.
Thus, we publish the project of law prepared in 1997 which
has been communicated to us by our friend, Dr Hamzé Haddad, Keeper of the
Seals, in the Hashemite Kingdom of Jordan. This project is published next to
the Jordanian arbitration law of 1953, which is subject to some controversies,
despite its advantages.
Furthermore, we are publishing a number of decisions of the
Jordanian Supreme Court, which are the only decisions generally published in
Jordan. Next to the Lebanese case law, we publish a decision of the French
Supreme Court, in a matter of arbitration related to a conflict which involved
the interests of the State of Qatar, before the French justice.
Thus, the Jordanian legislation and case law is at the heart
of this volume. Three articles are joined to that collection: two are in Arabic
and concern public policy and Lebanese case law in matters of commercial
agency; the third is in English, by Mr. Ali Shalakany, a well-known Egyptian
practitioner.
The second contribution of the present issue is a general
index of the volume already published in three languages, aiming to facilitate
research and classification. Thus the Review will furnish a useful and
scientific instrument for Arab and foreign researchers.
May this adventure go on, with the kind collaboration of
Arab and Lebanese jurists.
N° 12
Issue 12 of our Review marks the passage to cruising speed.
The Review was initially conceived as a quarterly, with one issue over the year
dealing with awards and case-law. As time went, the field developed
significantly and we were able to include in each issue a section on
"doctrine", as well as section on "case law" and a briefer
section on "legislation". This challenge we are willing to uphold,
and the present issue underlines a more sustained course for the use of
professionals.
We have for instance included no less than eleven new cases and awards on the occasion of the Millennium: two international awards, one of which is the object of partial cassation by the Lebanese Court of Cassation (both awards are published, each in a different section because of the language used); a domestic award on leasing, in addition to the new law passed by the Lebanese parliament in the first half of December 1999 ; a Tunisian decision on the power of attorney and the right to enter into arbitration including the obligatory clauses of the arbitral award, together with three domestic Lebanese decisions on the same subject, with a diametrically opposed result ( !) ; last but not least, a delightful court order refusing exequatur to a legal « opinion », an opinion which might have been appreciated differently had it donned a different format (see the comment of Dean O. Abdel Aal).
The reader will realize how much help and assistance has come from friends of the Review in providing decisions and awards, creating the event enhancing comparative skills, and developing critical sense and the humility of relative science. This is the reason why we have, in agreement with the Recueil Dalloz, published our comment on summary process in conjunction with an arbitral clause.
In terms of doctrine, we had to secure the room for Arab and American authors on the need to go beyond the New York Convention of 1958, now considered too timid, as well as the notion of public order as seen from the other side of the Atlantic. Can we maintain the speed? Should we rely so much on the favorable ? happenstance.
Let us forget these anxieties and enjoy an enriched actuality, as one enriches raw elements in scientific labs. As it draws to the end, the millennium deserves a wager on the joy of discovery. Happy Millennium!
N° 13
ECONOMICAL MUTATION AND ARBITRATION
(Symposium of Tunis of April 1999)
This volume is the result of an encounter held in Tunis/Carthage with the Tunisians lawyer. The latter, who met with their Europeans and Arab friends for the Symposium of April 26 and 27 1999 concerning "Economical Mutations and Arbitration, celebrated the anniversary of the Tunisian Code of Arbitration of 1993, which adopted mainly the rules of UNCITRAL MODEL LAW. However, many important subjects concerning Arab and International Arbitration were discussed at the same occasion.
The Symposium was a national festival of arbitration, celebrated with hospitality and with the great seriousness, the most authentic openness on modernity and with a deep care to be faithful to the specific characters of a culture essentially bilingual. This is probably what makes Tunisian and Lebanese lawyers so near. The latter should go there to find back their sources, visit that magnificent site, where Elyssar, daughter of the king of Tyr, has founded Carthage , of which the witnesses of a civilization which has been, one day, more important that the Greek Empire and the Roman Empire.
The present special volume, includes therefore several interesting reports. In addition, we owe to the help of our friends the gathering of several interesting one (see volume 7p. 86 and following page, Volume 12p. 58), as well as the Tunisian Law of April 26, 1993 (Volume 1p. 142). Other recent works were communicated to us: written in Arabic or in French, concerning various fields like applicable Law to the substance of the dispute or arbitration clause by reference, they contribute to giving an idea on the young Tunisian doctrine and shall be published soon.
Thus, the present volume deepen a global approach. Without the amicable and devoted cooperation of our friends, nothing of that would have been possible. Today, the present Volume appears in the same time as an illustration of the influence of UNCITRAL Model Law on a Arab law, but also a Lebanese-Tunisian reading of the young legal development in the Arab, the French-speaking and more general Mediterranean worlds.
Between Tyr and Carthage, the Mediterranean Sea appears as a straight line; in the same time a familiar horizon and a past full of pride and culture.
Why not rewrite the legends?
One should make… Carthage relives.
Ibrahim
NAJJAR
March-April 2000
This
double issue has been made necessary by the development of arbitral activity in
Lebanon. Most of the contributions at the Beirut conference of 11-12 Oct 1999
on applicable law and the control of the judge deserved to be published.
In
addition, the dedication of issue 13 to Tunisian law has delayed the
publication of numerous Lebanese awards and important judgments in the matter.
It
is therefore not as a measure of economy – this issue is twice the size of a
normal issue anyway, nor is it for lack of diligence that we have put together
the works and case law in a common issue, 14 and 15. The reader will find
greater simplicity in the presentation of the material, and more coherence in a
common arbitral environment.
For
arbitration has been meeting in these days of greater litigation the favor of
courts and experiencing a multiplication long hoped for and expected. However,
by order 14/2000, the Lebanese Council of Ministers enjoined public law moral
persons as well as local collectivities, from entering into any arbitration
agreement without the Council’s specific authorization. Here is a setback which
will certainly taint the image of the administration, which administration does
not otherwise hesitate to solicit foreign investment and loans. Such an order
will have little effect on the strictly domestic scene, in any case,
considering how frivolous administrative case law has proved in the domestic
arbitration for state contracts.
On
the subject matter, the published arbitral awards and the judgments are
generally in conformity with the last trends of arbitral practice. Relatively
laid back, rarely interventionist, despite exegetical tendencies, Lebanese
decisions seem favorable to the development of arbitration, whether ad hoc or
institutional. The latter offers better guarantees, especially when the
alternative is a unique arbitrator, who, in his solitude and soliloquy, cruelly
misses the precious genius of deliberation and the exchange of ideas, let alone
the confrontation of theses even if such exchange is sometimes meaningless, for
it remains often of immense practical importance.
Fare
thee well, then…
Ibrahim NAJJAR
N° 16
This issue publishes legal principles taken from 6 arbitration awards, one of which is international, made in Jeddah, Saudi Arabia. This is an important contribution to the comprehension of the logic and of the law applicable in an Arab country where the Shari’a is in close contact with the solutions of commercial law. Such a publication is an event for the law of arbitration, even if the confidentiality of the awards is meticulously preserved.
In
addition, Lebanese arbitration awards are published is this issue, along with
an international arbitration award rendered in Lebanon by a panel applying
foreign law. This is the second
international award that we have published in this Review, after that published
in number 1 (p.88/n°38). Contrary to the previous award, however, the
one we publish in this issue was just annulled by a judgment of the Court of
Appeal of Beirut, given by a simple majority, for the disregard of the
principle of contradiction and guaranties of rights of defense. In a way, this proclamation of the Lebanese
judge will certainly have repercussions.
Finally, the
Articles section of the Review continues to put forward a thoughtful
combination of varied and diverse studies.
The problems of international arbitration are dealt with at the same
time as European, American, Arab and Lebanese laws.
In this
way, the Review continues to address itself to those Arab readers wishing to be
informed on matters of comparative and international arbitration. Conversely, Western readers will find the
references and the information which Arab arbitration needs to claim an
existence which is confirmed more and more each day.
The 18th
issue of the Lebanese Review of Arab and International Arbitration again
covers the development of arbitral jurisprudence in Lebanon, also in Jordan and
Tunisia. In addition, articles of doctrine, in Arabic, French and English offer
the reader a glimpse into current events in the field of international exchanges
and necessary adaptations in matters of culture and arbitration law.
In this
regard, it is necessary to point out that the elementary principles and general
characteristics of domestic and international arbitration do not result in
being the object of a debate, in doctrine as in jurisprudence, at the same time
that more elaborate solutions are adopted. A law with several tiers, in sum.
The coherence of such a law suffers. The articles published in this issue are
as varied as they are diverse. Thus, next to the recurrent problem of public
order, questioning on agreed arbitrator and an account of
arbitration on the subject of petroleum law and international investments
are covered.
Among
the published decisions reporting – the most recent – that which made a literal
application of the Lebanese-Syrian Judicial Convention of 23 April 1997
(See this Review, vol. 4, “Legislation,”) and requires double exequatur
in Syria and in Lebanon for the recognition and execution of arbitral awards
rendered in these countries. An application which shows at what point one can,
under color of the supremacy of international conventions (art. 2, 2, New
Lebanese Code of Civil Procedure of 1983/85), thwart the Lebanese law of
international arbitration.
Ibrahim NAJJAR
Volume 19 of the Review
is essentially presented as a first evaluation of Lebanese jurisprudence on
the matter of State contracts in view of domestic and international
arbitration. The two principal judgments of the State Council were published,
with the sometimes passionate commentary that they aroused. A draft law,
modifying the (“new”) Lebanese Code of Civil Procedure is being studied under
the initiative of the Prime Minister and the Minister of Justice. The obvious
aim of this approach is to authorize, while regulating the system, domestic
arbitration (international arbitration being already admitted) for State
contracts, excluding the exercise of a power in Cassation when the action for
annulment of an arbitral award is dismissed by the competent Court of Appeal.
The ideas however can still develop. This is why we have not published the
draft put into circulation and still under discussion.
In this
regard, one must note that serious problems risk being left in suspense:
A
question of culture, as a consequence.
On
another level, this issue publishes the new Jordanian Law on Arbitration
(inspired by the system of law put forward by the UNCITRAL), next to the
jurisprudence of the Hashemite Kingdom.
Finally
we publish (it does no harm just this once) the speeches given during the
ceremony marking the publication of the “Chronicles of Lebanese Private Law”
appearing in 2001.
Vanity,
in of the form confidence in the reader.
Decidedly, the
Lebanese and Arab law of arbitration does not cease to surprise and evolve.
Following the reform of the Jordanian law (see Volume 19 of this Review), it
is the turn of the Lebanese law to react at the same time to the legislative
framework (a draft law responding to the restrictive case law of the State
Council – see our Review, n° 19, to definitively establish the
arbitrability of state contracts, even in domestic law) and to the jurisprudential
framework. The latter, once again, appears to be varying, in a great deal,
according to the judges, depending on the composition of the state Council. If
it is true that arbitration goes the way of the arbitrator, it is not less true
that state jurisprudence follows the judge. Thus, the next volume (21) of this Review
will publish recent decisions of the Supreme Court, which has for a long time
remained shy and inactive on this matter. For provoking the retreat of some and
the reorganization of the division (purely administrative) of work between the
civil chambers – « small causes, great effects » – the theory of Estoppel is expressly
consecrated in case law, following its dedication in article 100(1)
of the preliminary dispositions of the Ottoman Civil Code (Medjelle).
For the time being, we publish in this volume the judgments of various
divisions of the Court of Appeal of Beirut, along with certain arbitral awards,
allegedly spare.
The evolution
of the trends of Lebanese case law deserves a systematization : this is
the essential contribution, strongly articulated, which we publish in the
French section, marking without a doubt a step of a recent past which is
already largely ended.
On the
international front, the evolution of the arbitration law appears also through
French case law facing the admission of « compulsory arbitration » –
which is only pure incoherence, if one wishes that recourse to this method of
conflict resolution to remain voluntary and free. A study is devoted to this
and is published in Arabic as well as in English.
Finally, so as
not to fail the tradition of openness and transparency, rarely found in the
Arab countries – which are averse, inexplicably, to publish decisions and
judgments of Courts of Appeal and of Tribunals – we publish Tunisian decisions,
in which the contamination by French law recalls that of Lebanese law, but in
which the Arab legal terminology remains problematic.
In a word,
this volume 20 closes 2001, which is the fifth year of the Review published
with regularity and perseverance.
In this issue,
priority is given to the trilingual analytical tables of issues 11-21 of the
Review. Placed in the center of this volume, they form, along with the tables
of the first 10 issues published in volume 11, a coherent whole destined to
facilitate research. The tables are published in three languages on the
Review’s website (http://www.dm.net.lb/rla).
In
addition, as we announced in issue 20, Lebanese jurisprudence modernizing the
theory of Estoppel is reported on.
Also
published in this issue, alongside Egyptian state jurisprudence on the subject
of domestic and international arbitration, is the new Palestinian arbitral
legislation (there is no other word to describe the legislative act of the
Palestinian authority in the West Bank and Gaza). Dated in the year 2000, this
law actually has the objective of a series of measures destined to create an
arbitration center. These measures are financed by funds donated to equip the
Palestinian territories with a credible structure of arbitration, with all the
preliminary searching that can be imagined. Therefore we publish this law with
an introductory commentary, wishing the professionals in charge a good journey
and infinite patience. As this new law must clear away previous regulations
dating from the time of the British Mandate.
The reader
will perhaps be surprised at the welcome we accord to a university research
project on the subject of the law of arbitration within the framework of the
North American NAFTA agreement. However, a trilingual publication - which
includes subscribers in 18 countries already - must observe the evolution
and comparisons of nature to arouse the interest of the inveterate researchers
that we sometimes are.
Finally,
we do not forget either the questioning sparked by the actuality of the
“foreign arbitral awards in Saudi Arabia”, or our perpetual Lebanese debate on
“arbitrability in the matter of State Contracts and commercial exclusive
distribution contracts”. Without doubt this latter subject of contracts of
“exclusive agency” (in reality concessions for exclusive distribution) will be
the most vague in the months to come, until one can discern that the incitement
to competition and to parallel import is not exclusive to the maintenance of
the legal framework (inter partes, between the distributor and his
representative) of “commercial agency”. Concerning arbitration, it is evident,
nevertheless, that antitrust laws and the opening to the WTO are incompatible
with the maintenance of laws of security and of the privileges of jurisdictions
presenting obstacles to arbitrability.
Ibrahim NAJJAR
Lebanese Arbitration Law seems on the right track. Generally, the court decisions that we have included herein recognize that arbitration is not an exceptional justice and that state jurisdictions should not try to submit “arbitration justice”. It is true that the Supreme Court, by a recent decision dated April 23, 2002 (to be published in the Volume 23), has reversed a decision of the Beirut Court of Appeal dated May 11, 2002 (see this Review, Volume 14/15, p. 123) which has itself previously cancelled a judgment of the Tribunal of First Instance of Beirut dated November 29, 1999 (see this Review, Volume 12, p. 52, with the critical comments of Mr. Okacha ABDEL AL). The said reversal is based on the obligation of motivation of the arbitration award, stipulated expressly in the New Lebanese Code of Civil Procedure. This seems very logical, because the obligation of motivation, even if it is specific to the judicial systems influenced by the French system, is presently recognized and appreciated in the whole world. This is also a necessity for having a minimum of professionalism in the field of arbitration. A deep knowledge of Islamic theology (the arbitrator, in that case, was a highly recognized ulema) is not enough for making a good arbitration award, in the judicial sense.
As to the articles, case law and other documents published in this Volume, they include mainly a new study of the principle of contradiction - particularly important in the arbitration procedure because of the role recognized to the will of the parties, within certain limits - and a review of the legislative trends in the Arab countries.
At this level, four decisions of the Cairo Court of Appeal published herein - in Egypt only the decisions of the Supreme Court are published - deserve to be mentioned, concerning particularly the immediate effect of the law of 1994 (concerning the arbitration clause) and its modification on May 16, 1997 (relating to administrative contracts).
But the essential part of the legal articles of this volume is dedicated to the new Jordanian law. Reader of Lebanon, Jordan, Egypt and other Arab countries, shall find in that study some elements for reflection and comparison.
Undoubtedly, this is all the Government and the Parliament ever seem to have in mind! So many texts, all of a sudden. So many successful efforts made in order to accomplish a major legislative make-over in favor of the recognition of the arbitrability of some State contracts.
Following the quite ambiguous articles of the New Lebanese Code of civil procedure that had regulated in a comprehensive way domestic and international arbitration, but without taking a clear-cut position concerning the debate on the arbitrability of State contracts, particularly in internal law, especially following Cellis and Libancell decisions (see this Review, Volume 19, 2001) and their surprising outcome, it was decided to meet the requirements of the hour.
It seemed that
the case-law of the State Council had to be put on the right track... in view
of the explicit terms of the article (see art. 809, New Lebanese Code of civil
procedure), there was no doubt about the arbitrability of International State
contracts; From now on, the arbitrability of administrative or State Contracts
is consecrated and welcomed in domestic arbitration.
Actually, the most important current events are presently the contracts generated by privatization: that of the mobile lines - that required the enactment of the statute n° 393/2002 of June 1st, 2002, (which was considered constitutional according to the Constitutional Council; of July 3, 2002, decision n° 2/2002, Official Gazette, vol. 40, page 4907) in which a special article (5) allows the recourse to domestic or international institutional arbitration. Besides, in addition to the statute n° 403/2002, of June 5, 2002, allowing the Lebanese Government to join the ICSID convention of the World Bank of March 18, 1965; and the statute n° 360/2001 of August 16, 2001 (the 8th article of which authorizes expressly the recourse to arbitration) the privatization of the Electricity of Lebanon has just been ratified.
At last, the Lebanese Parliament has approved, on July the 16th 2002, a reform of the New Code of civil procedure, particularly provisions of articles 77, 762, 770, 786, 795, 804 and 821.
The latter provisions submit on one hand arbitration in State contracts to a prior governmental authorization (a decree by the Council of Ministers applies to the State, and the minister of guardianship’s authorization regarding the contracts of legal entities of public law) and on the other hand abolish the recourse to the Supreme Court against appeal decisions, as to arbitration ex aequo et bono, when they legal entities reject an action for annulment of an arbitral award. This will make the intervention of the Supreme Court rare and exceptional and will magnify the role of Courts of Appeal. The provisions of this statute grant the arbitrator the ability to take the protective temporary measures required by the nature of the litigation. According to the experience of the french case-law, this will certainly create problems concerning amount provisionally allocated and urgency measures, when the constitution of the arbitral tribunal is delayed. No wonder that this issue of the Review is in great feal dedicated to the said legislative reforms.
Moreover, International and even domestic arbitration, seem to be perfectly suitable for the State. Effectively, most of the awards delivered are relatively to his advantage. In this context, we should refer to the Walter Bau vs CDR award, the CCC-Hochtieff vs CDR award, as well as the award (in Arabic) that we are publishing in the summary, delivered under the auspices of the Cairo Center (Eastern Company vs Lebanese State) on June the 20th, 2002.
Ibrahim NAJJAR
N° 24
With this issue N°
24, ends the 7th year of our Review’s adventure, started
in the summer of 1996.
A trilingual
alphabetical index will soon be published.
During these
years, the Review has not only published Lebanese Courts decisions and
reports of seminars held in the Arab countries but also numerous law chronicles
and commentaries on case-law, about the most controversial problems in Lebanon
and the Arab countries. Therefore, it is only natural that the section
“Articles” includes Arabic and French commentaries of the amendments by the Law
440/2002 provisions of the “New” Lebanese Code of Civil Procedure.
Are also
published in this 24th issue not less than 18 unpublished decisions of Cairo
Court, delivered between 1995 and 2002, with the commentary, sometimes
critical, of two of these decisions, by Dean Hafiza EL HADDAD.
The most
recent Lebanese Courts decisions have also been collected and published;
particularly, a decision delivered on December 12, 2002, by Mr. Fady NACHAR,
acting as the judge of urgent proceedings in Beirut for matters of amounts
provisionally allocated in presence of an arbitration clause. It is well known
that, a few days later, Mr. NACHAR was the victim of an attempted
assassination, at a time while he was sitting, in a public hearing, in Beirut’s
Justice Palace. Young and dynamic judge, Mr. NACHAR has the reputation of
delivering real provisional decisions, within a few days and sometimes during
the same hearing, literally speaking. Such an eagerness and enthusiasm deserved
a better fate. Let’s bet that they will get, at least, a good destiny. We seize
this opportunity to acknowledge the courage of a judge, to honor his work,
still fresh, but also to express our indignation towards the decay that
impunity encourages and that politicians can not, apparently overcome.
With the start
of the year 2003, we express to our readers our wishes of peace, serenity and
hope, since we will really need them.
Ibrahim NAJJAR
N° 25
Since the orders of
Cellis & Libancell of the Lebanese State Council and the modification in 2002
of the provisions of the new Lebanese code of civil procedure , the Lebanese
doctrine is free of obligations. It’s about time. Young authors, as well as
confirmed jurists do not more hesitate to prudently participate at the analysis
effort and critical appreciation of the case-law in internal law of
arbitration. This issue number 25, the first in 2003, is the illustration.
But because it is continuously necessary to follow – that means also to observe
and to be educated – the innovations in the matter of arbitration, it seems to
us instructive to publish the works of a seminar about the Pre-arbitration
Injunction, organized on May 31, 2002 by the International Institute of
Arbitration (IIA) presided by Mr. Emmanuel GAILLARD. These works will not fail
to show the ingenuity and the suppleness of ICC rules phased since more than
ten years, but rarely used. At the time where the provisory and conservatory
measures are again the big name in the modifications occurring by the law n°
440/2002, the works of the doctrine and case-law , wager that the
pre-arbitration injunction may receive application in Lebanese Law.
This issue number 25
do not forget to propose a comparison with another system, the one of the
arbitration law in the United Arab Emirates. We publish then a significant
summary of its case law.
Finally, as promised,
we will soon publish an alphabetic general trilingual index, and mail it to the
subscribers of this Review.
Ibrahim NAJJAR
This issue n° 26 contains international arbitral awards delivered under the auspices of the Lebanese Arbitration Center as well as many Lebanese Courts decisions. These latter confirm the trend of the case-law to definitely reinforce the favour to arbitration.
However, the case-law of the State Counsel continues to consider, according to a new decision of its Chairman (N° 447, dated April 15, 2003), that the exequatur should be denied in matter of administrative contracts. A BOT contract, if it is really of administrative nature, may not be international and therefore the disputes arising from it may not be submitted to arbitration (see the cases Cellis & Libancell published in this Review, volume 19).
We also publish the English translation of a decision published in this Review, in Arabic (p.45) delivered about an international arbitral award to which the exequatur has been granted in Lebanon.
Decisions of integral annulment of domestic awards become more and more rare and pleas of dismissal drawn from the existence of an arbitration clause are more frequently opposed. Reference is made to ancient legal principles for the sake of the good cause. One should be particularly satisfied, since the generalization of arbitration law culture seems to have taken the turn desired and hoped.
Yet, some solutions adopted by the Supreme Court raise interrogations.
As for the Arab case-law relating to arbitration, it is “represented” by a recent unpublished decision of Cairo’s Court of appeal dated July 30, 2001 on interest rate in an international arbitration award.
This is why we insisted to highlight a legal article in Arabic on the support of Islam toward the concept of arbitration, often based on a lucky language ambiguity, mixing tahkeem (arbitration) and conciliation (calling on mediation, or wissatat).
As for the promised alphabetical index, covering the first 25 issues of the Review, it has been, indeed, delayed for distribution, owing to several technical necessities. However, the reader will understand the difficulties that the alphabetical index in Arabic language can generate. The key-words are not submitted to a specific use and their spelling is particularly variable because of the richness of the Arabic language, which causes sometimes collateral results…
Ibrahim NAJJAR
Professor Philippe FOUCHARD died in a terrible tragedy.
Certain words, in such circumstances, can hardly be spoken.
How can we express the loss, the anger, the sadness, the desolation arising from some accidents?
On January 3rd, 2004, an Egyptian plane chartered by French tour operators crashed in the Red Sea, just after taking off from Charm el Sheikh, five kilometers from the Egyptian coast. On board were Philippe FOUCHARD, his wife Annie, his daughter Isabelle and his son-in-law Edward ZALAZNICK, his son Jean-Yves and his daughter-in-law Makumi, and five of his grandchildren. All the other travelers died and seem to be buried hundreds of meters under the sea level.
The only survivor of the family’s tragedy is David FOUCHARD, who had remained in France.
I dare not even try to imagine what happened between the time when the plane attempted to turn back and that when the travelers understood what their fate would be
It is a terrible loss for all those who, the world over, and especially in Lebanon and the Arab countries, were the FOUCHARDS’ friends, the colleagues, students and admirers of the recently retired professor.
We
can certainly pay tribute to that great jurist, the friend of the law faculty
of the St. Joseph University of Beirut, but I would like to go further and
underline the foremost position that Philippe FOUCHARD held in the history of
arbitration law, a position that was and will remain unique. He was a faithful
reader of this “Revue” and a prestigious member of its Committee.
He was infinitely humane and had high professional ethics; his generosity of heart and spirit was equaled only by his modesty. A learned man, a man of science who knew how to propel his students and future graduates towards excellence. Philippe FOUCHARD refused the idea of “Mélanges” being dedicated to him, although he fully deserved them. He allowed himself to be “contaminated” by the hospitality and gratitude of the Lebanese, and was to resume his DEA courses of at St. Joseph University in February 2004. Need I even mention all the other occasions we were looking forward to: updating of the Arbitration Treaty, seminars and other meetings where his precious words would be heard…
“Mektoub”, it was his destiny.
Such men are a perfect illustration of French law and of the eternity of the open intelligence of men of heart.
Ibrahim Najjar
January 5, 2004
3, rue de la
Chouette, 21000 DIJON, FRANCE.
The French section of this volume, more developed than usual, publishes two
lectures concerning the arbitrator and his independence, given by Mr. Thomas
CLAY, as well as two decisions delivered by Switzerland’s Federal court, seized
upon an annulment petition of an arbitral award passed, involving a
Euro-Lebanese dispute, and a petition for its review. These decisions, pronounced
publicly by State courts, are already published on Switzerland’s Federal
court’s website and belong then to the public domain.
Moreover, will surely be welcomed the information concerning the project of
amendment of Morocco’s arbitration law, in addition to the report upon the
memorable multi-lecturers conference in which late Philippe FOUCHARD
participated, after Mr. Jean-François POUDRET had addressed French magistrates
in comparative features of French and other laws on arbitration.
As for the Arabic section of this volume, it includes two doctrinal
contributions about the I.C.S.I.D convention of March 18, 1965, as well as the
judge independence guarantees.
Besides, an important
part is dedicated to the most recent Lebanese case-law.
In English, many
brief contributions measure the progress of Lebanese banking law (concerning
the regulation of the establishment of Islamic banking) as much as online
dispute resolution.
This volume 29,
eclectic to one’s liking, gives at least the opportunity to review the existing
Lebanese, Arab, and International arbitral scenery.
Ibrahim NAJJAR
In order to get more efficiency and regularity in the publication of this Review, we inaugurate with this volume a new technical cooperation, hopefully to the best of the readers’ interest.
The articles of this volume 30 take focus on the evolution and the implementation of the Egyptian “New Legislation on Arbitration”, after ten years of experimentation. In the domestic Lebanese arbitration, a special attention is being given to the case when no reconciliation is possible between a court’s case and an arbitral award. Furthermore, in the English and French section of the Review the intellectual property and its arbitral disputes occupy a prominent place.
As usual, number of state case-law and unpublished awards are gathered; their variety and the fields of the involved matters as well as trade law show the continuous interest in arbitration.
We hope that many legal counsels and specialists will find in these interesting judgments and awards some life matters to comment and elaborate on.
Moreover a very recent decision given by the French Court of Cassation dated March 30th, 2004, also published in the Recueil Dalloz, is published in this volume with a commentary. This case concerns the arbitration clause in the field of consumer protection law. The decision shows that the capital markets are, day by day, becoming more international, so that a new reflection on the so called “internationality” criteria is more necessary than ever.
Finally a summary of the debates and proposals made during the Casablanca Conference on Arbitration during March 2004, as well as a book review of a new issue on alternative dispute resolutions hold the pages of “the News on Arbitration”.
Ibrahim NAJJAR
N° 31
In this volume, we publish next to the Lebanese State courts decisions, 8
decisions of the Egyptian tribunals (Cairo Court of appeal) and of Emirates’ tribunals
regarding recourses against arbitral awards or arbitration clauses.
The arbitration,
especially in Lebanon and in Egypt, is in constant evolution.
The Court of Cairo
follows the latest tendencies of the legal doctrine and case-law in
international arbitration. Two brief notes focus on that evolution and prove
its utility. Thus, from now on, one may certainly consider that arbitration is
growing, since a number of years, and that arbitral panels are acting like
State courts, even if they are more specialized in commercial, international
and professional disputes.
This is why, in addition to interesting studies concerning mediation, we also
publish a sort of practical guide to basic concepts of arbitration law, for our
readers from the Arab countries.
Ibrahim
NAJJAR
This volume focuses once more on the recent developments of the Egyptian Courts
case-law in the field of domestic and international arbitration. Many Egyptian
decisions are published in Arabic and will be followed soon by an overview by a
prominent specialist in this field.
The other part of this volume is consecrated to the Lebanese Courts case-law.
Among those decisions, attention must be drawn to the decision rendered by the
third civil section of the Beirut court of appeal, dated October 21st, 2004.
This decision refuses to admit that the domestic recourse to arbitration is
prohibited in the field of lease contract law, if and when the rent is signed
to the benefit of an international organization (UNRWA). The court of appeal
points out that the basic and fundamental right to resort to justice must be
recognized as an absolute human right that should overcome any diplomatic
immunity or any other principle of “non-arbitrability” of the dispute in the
lease contract field. There is little doubt that this decision will raise many
questions and interrogations; because it leads to decide that the diplomatic
immunity could be overridden by an arbitration clause, even if public policy
doesn’t admit arbitration in the field of lease contract.
On the other hand, a recent decision rendered by the President of the first
instance tribunal of Beirut, dated October 4th, 2004 inaugurates a new solution
in the field of international arbitration in Lebanon. The question was to
decide whether a Lebanese arbitrator appointed by foreign corporations in
Greece could or not be criticized and challenged before the Lebanese court, if
the arbitration process is being conducted under the foreign law, outside
Lebanon. From now on, an important precedent has decisively stated that the
grounds for challenging the arbitrator according to the domestic arbitration
law in Lebanon do not apply and could not be extended to international
arbitration.
Happy New Year 2005!
Ibrahim NAJJAR
Needless to reiterate
that arbitration is neither a substitute for, nor a competitor to State
justice. In fact, arbitration complements the justice of the State and
constitutes its necessary supplement. Individuals and legal entities willingly
have recourse to arbitration, thereby giving more stability, trust and serenity
to their relationships.
Nowadays, relations
among individuals and companies have become more diversified and complex.
Indeed, they are no more restricted to a country’s territory or to a single
language; these new data have generated a kind of disputes, which require for
their solution an acute expertise and accurate knowledge in their relevant
subjects and activities. Such a specialization can hardly be found in the State
justice. Therefore, our concern in the Ministry of Justice was to put at the
disposal of judges modern technological means to facilitate their access to
Lebanese and foreign legal database to pave the way for the swift resolution of
disputes and to allow judges to carry out their duties with a high standard of
competence and efficiency.
Nevertheless, the
most important fact, for arbitrators and judges alike, remains to ensure their
total independence and compliance with the code of ethics which should govern
their judicial activity.
Recognized
arbitration centers use their best endeavors to ensure that arbitrators,
including those appointed by litigant parties, are selected among independent
persons excluding those who have any close links with litigants or those who
have already given their opinion in the dispute. This is also applied to
arbitration proceedings since these centers try to make sure that arbitrators,
notably the ones appointed by litigant parties, abide by the rules and
principles that aim at ensuring the transparency of procedures and at promoting
trust in the awards handed down by arbitration courts.
A similar effort
should be made in Lebanon in the State justice which has suffered from
interference of the agencies and the authority, thereby undermining citizens’
trust in this justice system which should be their final recourse whenever
their liberties, rights or dignity are at stake.
A committee of judges
has recently accomplished the mission I had assigned to it, that is to draft
the rules of ethics for judges and proclaim the values and principles which
they should abide by in the exercise of their professional duties and in their
private life.
With a view to
highlight the importance of this achievement, the draft Code should have been
declared to the media and public by the Head of the judicial body, rather than
by the Minister of Justice. However, it remains to be seen whether the fate of
these rules of conduct will be effectively observed and whether these proper
and noble principles will not remain a dead letter.
Dr. Bahige TABBARAH
Ex Minister of Justice
14.3.2005
N° 34
This issue is
characterized by the volume of its legal articles as well as by their
scientific level and linguistic and geographical variety.
The English part
contains an article on Lebanon’s importance, neutrality as well as its legal
system regarding international and Arab arbitration.
The French part
encompasses a remarkable article that explains the impediments of the
international arbitration and the jurisprudence issued by the Cairo Court of
Appeal regarding international trade.
We chose to publish
this article in French based on the text we received from the author, after
having published in previous issues as well as in this one several provisions
issued by the Committee he presides, knowing that this article quotes a
conference delivered by him in France.
Aside from this
article, we also publish a commentary on an interesting decision issued by the
Cairo Court of Appeal, by virtue of which it has repealed the decision issued
by the president of another department adjunct to the same court. By pure
coincidence, the article that we are publishing in French is that of the
aforementioned president.
Moreover, we are
publishing another article in French on the diplomatic immunity subject
which is the center of a profound analysis on the fundamental right in lawsuits
and arbitration.
In
the Arabic part, we publish a detailed commentary on a decision that we have
already mentioned in the introduction to the 32nd issue pertaining
to the Lease Contracts in Lebanon and impediments of the Arbitration Clause
when the tenant benefits from diplomatic immunity.
In
the part pertaining to jurisprudence, we publish once again an additional issue
of the decisions issued by the Cairo Court of Appeal, as well as the most
important decisions and rulings issued lately by the Lebanese Courts.
Within
this context, we draw the reader’s attention that we are publishing the
decision issued by the Appeal Court of Beirut on the 28th of April
2005, in virtue of which it has repealed the decision that has covered the
executive form of the arbitration decision issued on the 22nd of
April 2003 and against which the Swiss Courts have appealed according to the
Federal Court decision on the 16th of October 2003, published in
this magazine in French.
We
will be publishing the decision of the State Council, in virtue of which it has
repealed the arbitration decision regarding the Work Obligation Contract of
Beirut International Airport, basing its decision on the fact that this
contract has been concluded by the Lebanese State and cannot be – or could not
be – arbitrated. Consequently, this leaves the impression that international
arbitration decisions are not always as welcome in Lebanon as they would like
to be.
Ibrahim NAJJAR
See the
32nd issue of this magazine, the decision of the Appeal Court of Beirut,
third chamber, number 1815/2004, on 21/10/2004, and the introduction of the
issue.
Issue 29, p. 26 and
following.
N° 35
Two events, the first
Lebanese-Italian, the other Lebanese-Saudi influenced the content of this
volume.
Indeed, on the eve of
holding in BEIRUT, in the context of the activities of the Beirut Chamber of
Commerce and Industry, of a seminar on arbitration as a mean for dispute
resolution in light of the rules of the Arbitration Chamber of Milan, we
publish without previous coordination, an article in French on the rules of
arbitration of this Chamber and, an article in English on the choice between ad
hoc arbitration and institutional arbitration.
This seminar will
precede three days, November 19 to 21, 2005, in SHARM EL SHEIKH, dedicated to
arbitration and its comparison to the State justice, where a tribute will be
paid to the memory of Philippe FOUCHARD and his numerous family members who
died tragically in those unpredictable places.
The second event
marks the accession of Kingdom of Saudi Arabia to the World Trade Organization
(WTO), as well as the issuance of a list of arbitrators recently accredited in
this country. Needless to say that these two events, taking place in 2005, will
affect the evolution of arbitration in the Gulf countries.
On this occasion, we
deemed it appropriate to seek to promote the publication of this Review, as
well as the launching of our columns, or even the publication of a special
supplement dedicated to the Kingdom of Saudi Arabia: special agreement of
publication has been signed with young and dynamic jurists of this Country, it
being understood that their elders, with whom we insist on maintaining and
preserving strong ties and cooperation, will be able to measure the extent to
which their pioneering initiatives could generate editorial and arbitration
vocations.
On the other hand,
this issue remains faithful to its engagements: a doctrine of quality tends
to elaborate on the incidence of filing a recourse in cassation in case of
refusal of the suspension of execution, as well as on the central role of the
judge to support on the organization of the arbitration procedure. Otherwise,
the Lebanese and Egyptian jurisprudence continues to furnish the references in
Arabic for the interpretation of judges, sometimes of arbitrators, in the
humblest as well as in most prestigious issues.
It is to say that our
pages remain respectful of their well informed readers.
Ibrahim
NAJJAR
This issue No. 36,
the last for the year 2005, calls for evoking both the "Revue"
in general and the content of this publication.
In fact, this issue
marks the 10th anniversary of the Revue, which was first
published during the Summer of 1996, and extracts from its various issues have
been published on the internet. Indeed, our Revue was the first law
magazine to be distributed over the web in 3 languages, particularly in Arabic
– not a technically easy job at the time.
The key aspect of
this undertaking has been not so much the regularity of distribution, as the
need to ensure that there is no delay in the articles and information reaching
the entire world in Arabic, English, French, Spanish and Italian. The
jurisprudential trends in the Arab World as well as the latest news, laws and
regulations of many arbitration centers around the globe were made available for
the Arab reader; which testifies to the continuously increasing vigor and
passion for arbitration.
Subscribers – and
loyal friends – are certainly more numerous in Lebanon, given the existence of
distribution facilities and density of Lebanese-specific materials in the Revue,
and since arbitration has been widely expanding in Lebanon and has continued to
do so despite all the ordeals encountered. Lebanon continues to play the role
in the "cultural modem" between East and West and even within the
East itself …
However, Arab
arbitration specialists, despite some occasional material and cultural
constraints, have started to get acquainted with the Revue.
Meanwhile, it has not
been possible to publish, on the Internet, more than the analytical tables and
the foreword of the issues; the costs of a complete publication would be
disproportionate to the subscription fees. Nevertheless, even this partial
publication has caused some embarrassment: we have been receiving numerous,
almost daily, requests by students and researchers looking for reference
material and have been unable to send them the published articles by fax or by
mail…
As to the content of
this final issue for the year 2005, it includes miscellaneous articles about
arbitration in equity, jurisprudence of Egyptian courts (in Arabic),
provisional measures (in French), a study about language of arbitration in the
absence of agreement by the parties, in addition to a study about Dispute
Boards and ICC regulation (in English).
This issue also
contains a report about the conference held in Sharm El Sheikh, about the role
of justice as a support for arbitration, a seminar organized by the French-
Arab Chamber of Commerce in Paris as well as the arbitration jurisprudence in
Lebanon and Egypt.
We will be publishing
soon the Jordanian arbitration jurisprudence.
We hope that year
2006 will leave behind it the tragic events and blind terrorism that has bathed
the region in blood; we do hope that it will open up the way for a firm will to
overcome the disagreements in order to establish a solid understanding in an
area that has, for many years, been trying to move forward and recover its
fundamentals of culture and identity.
Ibrahim Najjar
N° 38
Three jurisprudences,
published in this volume, should be pointed out.
The first
jurisprudence refers to the exequatur of an arbitral award regarding a B.O.T
contract signed by the Administration. After being qualified by the president
of the State Council on the 15/4/2003, as an administrative contract that does
not match with the qualification of international contact which leads to the
refusal of the exequatur, the Dispute Section of the State Council decided on
the 21/2/2006, that this same contract is arbitrable, despite the fact that it
is concluded between the public establishment for investment promotion (IDAL)
and a private company, and granted it the exequatur.
This decision
indicates, after the promulgation of the 2002 law, a reversal of the CELLIS and
LIBANCELL precedent, that has been for long criticized by Lebanese and
international doctrine.
The second
jurisprudence is a decision of the Supreme Court rendered on the 27/4/2006 in
another famous case relating to an arbitration that was qualified abroad (in
Switzerland) as an international arbitration, while the appeal court described
it as an internal arbitration. The Supreme Court then decided that it was an
internal arbitration taking place abroad, despite the proof of foreign
partnerships.
The Supreme Court
also decided that the discussions and deliberations between arbitrators are not
submitted, under the institutional arbitration procedures of the International
Chamber of Commerce (ICC), to formal restrictions, as long as the possibility
of deliberation has been given to the dissident arbitrator.
The third
jurisprudence also comes from the Supreme Court, Civil section, on the
30/3/2006, who agreed that the judge of urgent matters was able to allocate the
creditor a provision over his right.
This decision was
rendered in a case related to a lease contract, ruled, in principle, by a
public policy regulation and order regulation, despite it being,
in our point of view,
not arbitrable. It is interesting to note, that the Supreme Court did not
mention whether the arbitral tribunal was formed or not, and gave no
significance to what the French Supreme Court decides in such cases².
We also publish in
this volume, next to the jurisprudence in Egypt, an international arbitral
award in French, rendered on the 30/6/2004 and relating to the termination of
an exclusive distribution contract, where it was decided that the contract is
arbitrable notwithstanding articles 4 and 5 of by-law n° 34/67.
We also publish a
French article concerning the arbitrator characteristics (especially his religious
belonging and gender) in the Middle Eastern legislations, and an article about
arbitration in the Islamic Shari’ a, which is an extract of a doctoral thesis
on arbitration in Saudi Arabia.
Ibrahim
Najjar
N° 39
This issue n° 39 continues the publication of extracts of a thesis on
international arbitration according to the Uncitral rules and Islamic Sharia’
(in arabic) and it contains another article on the challenge of the arbitrator
and the extension of the arbitration time-limit (commentary on two recent
decisions).
We also publish an article on international arbitration and the protection of
international investments (in French) and on law and “post-modernity” (in
French).
This issue didn’t
forget awards (in Arabic) and Lebanese and Egyptian state courts decisions.
Since it was first issued, in 1996, the price of this Review remained unchanged
despite the circumstances that increased the cost of its publication and
diffusion. This Review, which aim is neither profit nor even budgetary balance,
has always aspired to promote an arbitration culture in the Arab countries and
in Lebanon.
Accordingly, the regularity and scientific configuration of this research tool
have contributed to make it useful and widely received. However, sales and
subscriptions in the Arab countries - except Lebanon - have remained below
expectations.
In some Arab countries, the relatively high price – in terms of currency – of
the volume retail as well as the carriage expenses, is the main reason of the
insufficient number of sales. Conversely, in Lebanon and in some European
countries, the number of readers and subscriptions is increasing in a regular
way, especially that of college libraries and lawyers chambers.
But in order to maintain the regular coming out of this Review without giving
way to the temptation of cost-cutting, we’ll henceforth have to take into
account the rise of certain expenses. This is why prices will be slightly
increased as of the first volume of 2007.
Ibrahim NAJJAR
Numerous chronicles
are included in this volume of the Review. While continuing the
publication of the thesis related to international commercial arbitration in
the light of the UNCITRAL legal principles in their relations with the Islamic Shareh,
it is to be pointed out that our next volume will publish the project, the
commentaries and suggestions that might contribute to the evolution and
modification of the UNCITRAL Model Law.
The “Articles”
of the Arabic section includes an approach of the BOT concept, and a contribution
to the interpretation of the international arbitration award in the Lebanese
law, which underlines the importance of the definition and delimitation of the
arbitration clause. This contributes to the development of the arbitration
culture in the Arab countries.
In the English
part of this issue, an interesting article deals, for the first time in
Lebanon, with what is today known as the “umbrella clause”. This kind of
stipulation encourages and provides protection for foreign investments in the
Arab countries.
The « Case-law »
section publishes a Lebanese arbitration award rendered in a domestic
arbitration related to a contract applying the FIDIC rules. This award has been
granted the exequatur by the competent Lebanese tribunal, which makes its
publication possible. It is obvious that the importance of such an award is not
limited to the sole internal Lebanese law; the issues that have been discussed
concerning the FIDIC contract and its execution on the Lebanese territory are
widely applied.
Finally the reader
will not overlook a decision rendered by the Lebanese Supreme Court, relating
to an exclusive distribution contract governed by bilateral conventions, which
is subject to some severe reservations. The commentary of this decision is
published in the section “Articles”.
This volume number 40
of the Lebanese Review of Arab and International Arbitration brings
a serious contribution to the development of the arbitration law. The excellent
articles that we publish herein are the occasion for us to wish peace and
security to Lebanon and the Arab world, despite everything and regardless of
the turmoil we live everyday.
Ibrahim
NAJJAR.
N° 41
During its last
session held in New York between June 19th and July 7th 2006,
the United Nation’s Commission for international trade agreed to appoint a
Working Group in order to suggest and to discuss the possibility of a revision
of the UNCITRAL arbitration rules of 1976.
It’s well known that
this matter has been already discussed several times during the last four or
five years. The identification of the areas where a revision of the UNCITRAL
arbitration rules might be useful, appears the of course to be very important
for most of the Arab states.
The UNCITRAL
arbitration rules have been adopted or have inspired the recent development of
both domestic and international arbitration in the Arab world. Therefore it was
obvious that our Review has to publish the very useful reports with their
general remarks. Even if these notes and suggestions will not lead directly to
a revision of the Arab by-laws, it remains very interesting to know what would
be the challenged provisions and/or the draft modifications.
That’s why this 41st
volume of our Review focuses on the UNCITRAL draft modifications and revisions.
But a the same time, it was very tempting to publish with the said reports two
articles in Arabic, where a comparison and a discussion are pointed out about
the day to day practice of arbitration in the Arab world and mainly in Saudi
Arabia.
Of course, we did not
forget to publish, in this same volume, Lebanese and Egyptian case-law,
together with a book review about some of the major arbitration publications in
Arabic, French and English.
Ibrahim
NAJJAR.
The publication in
this volume of a the final report about the seminar organized by the French
Court of Cassation in June 2007 regarding the “Aspects of International
Arbitration in the Law and Practice of the Arab Countries”, marks the
faithfulness of this Review not only to its essential vocation
but also to one of its eminent editorial board members. This is why the first
“article” is published in French next to a fine study, also in French, written
by two young and dynamic practitioners about “The Protection of Foreign
Investments in Lebanon”.
The following English
“article” (“The Legal Nature of ICSID Jurisdiction and the Investor
Nationality Requirements”), by its importance and actuality, could have
also opened this rich volume 42. We have conceded therefore that the unusual
amount of the “Articles” - including, in Arabic language, a didactic and
coherent article concerning “The recourses challenging arbitration awards in
the Arab countries” – has left little space (pages 18 to 42) to Lebanese
and Egyptian Case-law.
At last, the authors
express themselves! Through the writings, a systematic and critical reading of
the laws and State courts decisions and the assessment of their motivations
establish, from now on, the premises of a doctrine worth that appellation. The
ground is prepared for a debate of quality. The authors must know that the eyes
of the Arab countries are watching their intellectual excellence.
This Review
will not fail to follow up the evolution as usual. A quick glance to the first
issues of this Bulletin shows how important have been the major steps in the
world of arbitration in the Arab World.
Ibrahim
NAJJAR.
While carrying on
with the publication of academic works related to the application of the
UNCITRAL rules in countries governed by the Islamic Sharia’ (especially Saudi
Arabia), the Arabic part of this volume also includes a contribution to the
alternative dispute resolutions in the field of intellectual property.
In the French and
English parts, we chose to give certain publicity to a Lebanese study
scrutinizing the Lebanese positive law governing the enforcement (exequatur)
of arbitral awards issued in foreign countries. On the other hand, due to an
unusual misprint that occurred in the cross-references layout and the footnotes,
we had to republish the article (on the ICSID) already issued in English.
Regarding the
positive law, as MORROCCO has just adopted a law n. 05-08 on November the 30th,
2007 amending the Moroccan code of civil procedure (Dahir of August 12th,
1913) and introducing innovations in the area of domestic and international
arbitration (Official Bulletin dated December 2007). The text of this law we’ll
publish, in our next volume, its Arabic and French versions.
As usual, a special
section is consecrated to the Egyptian and Lebanese State case-law. Among
the Lebanese rulings, we draw the attention to a decision annulling an arbitral
award rendered in ex-aequo et bono, where the arbitrators only applied
the law relating to the time length reduction of a commercial corporation, but
without expressly motivating how their judgment is also guided by his own
judgment – “equity”. Such a ruling, in its principle, seems to be in accordance
with the latest trends of the French Case-law.
While hoping that our
readers will not mention the late publication and distribution of this volume
due to several technical problems, we take the opportunity of the ADHA,
Christmas, and New Year holidays - a fortunate concurrence - to wish them God
blessings, peace and happiness.
Ibrahim
NAJJAR
N° 44
This
volume is even richer than the previous ones as regards legal texts and
doctrinal contributions: an introduction to China’s Alternative Dispute
Resolution system; another introduction to the United Arab Emirates arbitration
law; the new Moroccan law on arbitration, which was very recently integrated to
the Civil Procedures Code; two approaches to the BOT contracts and the FIDIC
rule; and a study on the application of the New-York Convention provisions by
the Egyptian case-law. Arbitration law is truly the unavoidable complement to
Business law par excellence.
Very soon, this Review
plans to publish a French law arbitration chronicle, written by a young Doctor in
law and eminent professor, and, moreover, a member of the editorial board.
Furthermore, in order to accompany the needs of practitioners who are always
asking for the publication of judgments and chronicles, either old or recent,
we have re-initiated the study of an electronic use of the Review, via the
Internet, to facilitate its access by researchers and practitioners that are
either established abroad or unaware of Arabic language. This would require
supplementary technical and material efforts.
After almost twelve years of constant and perseverant appearance, in spite of
everything, this Review wishes to be up to one’s hypothetical expectations.
“Hand us back this debt”.
Ibrahim NAJJAR.
N° 45
Two
major issues are developed in the first part of this volume. The international
arbitration submitted to the rule of the Lebanese law (in Arabic) and the
immunity of the arbitrator (in French).
But
the most important development is the publication of a Review of the French
case-law in international arbitration. This case-law Review was undertaken by a
prominent Professor of Law and a young specialist recently proclaimed
Doctor in Law.
We
also publish in this volume, as usual, the last decrees rendered by the
Lebanese Tribunals in the matter of arbitration.
In
the volume third part, consecrated to the Arab countries legislation, we
publish the newly adopted Syrian law on commercial arbitration; it abrogates
and replaces articles 506 to 534 of the Syrian code of civil procedure
promulgated by the law n° 84 of 1953 and its modifications. This recent law was
adopted by the house of Parliament in its session of march 17th 2008; it is
published in the official Bulletin of the Syrian Republic and is implemented
since the 1st of April 2008.
We
also publish, in French, the Algerian law n° 08/09, modifying and replacing
articles 970 to 977 and 990 to 1065 of the Algerian New Code of civil and
administrative procedure. This new legislation on arbitration was adopted on
the 25th of February 2008 and was published in the official bulletin of the
Algerian Republic, 23rd of April 2008. the new law will be enforced starting
the 23rd of April 2009.
Needless
to remind that, as promised, the volume n° 46 will be consecrated to the
domestic and international arbitration in Morocco.
Ibrahim NAJJAR
N° 46
In
the 44th volume of this Review we published the text of the Moroccan Law n°
05-2008 dated 30/11/2007 in both Arabic and French languages as published in
the Official Moroccan Bulletin.
We
dedicate this issue to the arbitration in Morocco.
This
publication comes further to the international meeting that was organized on
the 24 April 2008 by the
Faculty of Law Hassan 1st in Settat (near Casablanca, Morocco),
“Unit of Formation and
Research, Business Law” around the theme “The New Moroccan Law of Arbitration
and Conventional Mediation”, with the cooperation of the Casablanca bar and the
Centre of International
Mediation and Arbitration of Rabat.
The
new Moroccan law (that we are publishing once again in French and Arabic in
order to facilitate its access in this same issue), constitutes a major event
because it is inspired as well from the French law (therefore from the Lebanese
one too) as from the UNCITRAL Model-Law and the other Arab legislations (and
especially the Egyptian Law). Some distinctive features specific to the
Moroccan law follow from the fact that this law has been discussed at the
Moroccan Parliament and that some articles have been inserted in such a way
that the Moroccan experience has been taken into account.
For
these reasons, we found it useful to also publish the word of the Minister of
Justice Representative which puts the light on the preparatory works and on the
aim of the legislator. These reasons have led to insert the new law, in both
its internal and international parts, in the Civil Code of Procedure (Mestera), and to the
codification for the first time in the Arab countries, of what is called the Conventional Mediation.
For these reasons also, it was essential to publish the critical intervention
of the President of the Casablanca bar as well as that of the representative of
the “Centre of Mediation and
Arbitration” of Rabat and another article related to the choice of
arbitration according to the ICSID Convention concerning Morocco.
But
the most relevant in this issue remains the comprehensive collection of
summaries and the filing of a big number of case law rendered by the Moroccan
State courts before the issuance of the new law but also after the rendering of
a first decision following the new law, with a critical comment by the vice
dean of the Faculty of Settat.
Have
a good research!
Ibrahim Najjar
This foreword of
volume 47 is marked by the provisory absence of its editor-in-chief who was,
along with his wife, the victim of a horrible car accident that he miraculously
escaped by the grace of God. The publication of this volume has nevertheless been
supervised by its editor-in-chief once he had the opportunity.
This volume is
particularly rich in communications and doctrinal contributions, as well as in
arbitral jurisprudence and Lebanese and French case-law. Numerous
communications from the seminar held in Amman, Jordan, on the recent
orientations of the commercial and investment dispute resolution modes in the
Arab countries are also published.
A report, as well as
a communication on the international agreements relating to the investments negotiated
by Lebanon, presented during a seminar on investment international agreements
held at the Ministry of Finance, Beirut, are also published, and contribute to
the quality of this Review’s volume.
On another hand, we
publish an article on the comparison between the three principle arbitration
rules, i.e. ICC, UNCITRAL and ICSID, an article on the binding power of the
arbitral agreement that is not signed by its parties and another article on
arbitration in equity in the light of the LCCP provisions.
To support the
notoriety of arbitral awards, this Review also proposes to publish arbitral
awards, especially the one recently rendered in a case relating to an
administrative contract of commercial agency which qualification was conflictual,
the case Electric Equipment co/Mobile Interim Company number 2.
The Review does not
fail to its ambition to accompany the most recent Lebanese and French Case-law,
especially when the latter involves Lebanese interests: the ABELA case. You
will also find the latest Lebanese decisions rendered by the First instance
Judges as well as by the Cassation Court, especially on subjects similar to the
Estoppel principle, the application of the arbitration clause whenever the
by-law n. 34/67 is inapplicable to the commercial agent, the deliberate, etc…
Nathalie NAJJAR
In spite of the fact
that this volume was delayed for reasons involuntary due to the Review’s
direction, it completes in its dense content the
Arab and comparative arbitral bibliography. Thus, the direction has taken
advantage of the several international seminars that took place in Lebanon, in
the Arab and Western world and that are related to arbitration in order to
publish the most salient lectures related in particular to the arbitral
proceedings or to arbitration handled by the most important arbitration
institutions that organize it.
For the French
section, this volume contains articles that form a new approach to
complementary subjects, that treat the notion of justice and arbitration
together with the role of the arbitrator, the compensation of the moral
damages, the efficiency of the arbitral agreement facing its validity, the aim
of arbitrator in accomplishing its mission as well as a Tunisian view of the
accomplishments of the internal Tunisian arbitration and the practical
experience.
As for the case-law,
and in particular the judiciary case law, after a hectic period due to some
delays resulting to the judiciary permutation, the decisions are back, they
explain the law and what it needs for its practical implementation. Some
decisions are beginning to be rendered by the special chamber of the Court the
cassation, and more particularly by its president that seems to be
understanding of the particularities of this field of judicial conflicts.
On the other hand, it
should be noted that arbitration in its strict wording does not seem to be, in
Lebanon and the Arab countries like Jordan and Morocco, the only alternative
dispute resolution. Mediation is prospering in the practical experience and in
legislation; it is the centre of legal meetings with multiparty of several
nationalities and talents. For this reason, a major part of the next volume of
this Review will be dedicated for mediation.
Therefore, we would
have caught up the involuntary delay that came up for the publication of this
volume 48 of this Review.
Ibrahim Najjar
After almost quarter of
a century of the Lebanese code of civil procedures implementation (in the year
1985), the Lebanese made up their minds and some of them decided that it was
about time to introduce mediation in the core of their dispute resolutions as
an effective alternative method.
Following several
conferences, in which sponsoring agencies and parties participated, especially Acojuris
from the EU and after the creation of a specialized institute to promote the
mediation culture and its presentation at the Saint - Joseph University of
Beirut, a draft law was proposed. We have transmitted the draft, after the last
meeting of the law modernization Committee in the Ministry of Justice before
the de jure resignation of the government (18/6/2009), to the
Presidency of the Council of Ministers
so that it can be properly adopted: the said draft law is published in this
volume. One could compare the draft law with the model law proposed by the Arab
League specialized Commission.
Of course, resorting
to mediation supposes a certain amount of preliminary agreement to accept the
outcome of the effort to reach a compromise between litigants, exactly as it is
the case when resorting to arbitration. Therefore, mediation cannot be imposed
unless the legislator provides that the parties are obliged to try and reach a
settlement first, or unless the contract’s special clauses impose the
negotiation of a settlement first, according to a precise mechanism (the
diplomatic way in agreements and international or bilateral memorandum of understandings,
or direct negotiation confirmed by an official invitation certified with an
official date, etc…). This preliminary agreement might even be the most
effective one, giving the mandatory consequences of its effects.
Still, having
recourse to mediation following the rise of a dispute, which is the hardest and
the most problematic, remains the product of a conviction in the effectiveness
of the preference of a settlement in the first place. Therefore, it supposes a
mental and psychological acceptance, not only that mutual compromises are
necessary, but also that the effort to conciliate is better than the
preliminary yielding that the lawsuit has to reach its end, leading to a winner
and a looser. Didn’t Ihering say that the lawsuit was “the right on the
war’s foot”? Especially since both parties need a little time before getting
their drawing lots, and before they get tired!
Nevertheless,
resorting to mediation after the elapse of a litigation period, remains, in our
opinion, and practically, the closer to realism, for every party would have
truly understood what his opponent’s means are as well as the strengths and
weaknesses of his stands.
This Review is
therefore pleased to consecrate most of this volume to mediation, along with
the publishing, as usual, of Lebanese and Arab jurisprudence. Needless to say
that our pages remain at the interested specialist’s disposal.
Ibrahim NAJJAR
The fiftieth volume of a specialized quarterly review should
be greeted for itself, as a sign of success. Continuity is the principal sign
that the Lebanese Review of Arbitration
(LRA) had its place in the legal literature. Beyond the editorial performance
with, very soon, an online availability, this success should be attributed to
the quality of the Review.
Undoubtedly, it appeared in a time when the Arab world of arbitration was
beginning to recognize the importance of this procedure and its multiple
contributions to economical parties and practitioners. But this is not enough.
One who goes through the 50 volumes immediately realizes that the LRA covers a
wide field: texts, state and arbitral case-law, commercial arbitration, but
also investments, national laws and comparative law. This informative mass is
characterized by its pertinence and the extent of the choices offered.
Moreover, renowned authors and valuable thorough articles add up to enrich the
reflexion and the debate over sensitive issues. The combination of actuality
and interest is the expression of a great directorship.
A special mention should be made of what a “Lebanese” Review
is. This quality does not only indicate the origin. I see in it a reference to
Lebanon’s particular place and responsibility in the promotion of international
arbitration throughout the Arab world. This responsibility is of an importance:
firstly, that the legislator does not intervene without a great deal of
circumspection. The 2002 law had been prepared but the same cannot be said
about the initial text. The urgency led the authors of the Code to find strict
inspiration in the French law. Local practice has however revealed certain
difficulties that deserve to be discussed in a special volume of this Review. Then, the responsibility of the
Lebanese case-law: the latter should be aware that it is internationally
observed and see to the rigor of its decisions, beyond strict local
considerations. Furthermore, the responsibility of Lebanese arbitration
institutions: the nonsensical wars having passed, a joined effort and a great objectivity
are necessary to elevate arbitration in Lebanon to the level of the rules
elaborated for its implementation and efficiency.
Finally, how not to pay a tribute to the dear Ibrahim Najjar
who offers the rare example of improving himself in the practice of power:
closer, more responsible, more pragmatic. But I will stop here; otherwise it
will be said that I’m his friend.
Long live the LRA.
Ibrahim
FADLALLAH
“Do we believe in
miracles? The Lebanese Law would have been one making it happening, in its
resistance to a war context”, wrote Dean CARBONNIER in his foreword to Ibrahim
Najjar’s book that collected the Lebanese private law chronicles published in
the “Revue trimestrielle de droit civil”[1]. The launching, in 1996,
by this same chronicle writer, of the Lebanese
Review of Arab and International Arbitration, was also, in his own way, an
act of faith in the future, or, if we prefer, a risky bet. Indeed, it had been barely
two years since the first international colloquium on arbitration was held in
Lebanon, the reflexion on the issue was therefore barely restarted, in a Beirut
still profoundly marked in its streets and facades by fifteen years of chaos
and conflicts orchestrated by shell fires.
One should have had
faith in the future to baptize this Review. Nearly fourteen years and five
volumes later, here it is, settled in the scenery of the Arab and international
arbitration. The bet is therefore won as, volume after volume, the Lebanese
case-law, patiently built (as it was the case in France) by some inspired
judges, finds, in the columns of this Review,
its place and the echo it deserves; the doctrine amplifies it by its
commentaries, in three languages. Lebanon has always spread out in the entire
Arab world: that’s the reason why the decisions published in Arabic serve as a
reference point. As for the doctrinal articles, they are published in several
languages (French, English, and Arabic), therefore showing the diversity of the
authors’ provenance.
Traditionally, in
Lebanon, the sight is prolonged beyond frontiers: we are therefore not
surprised to find, throughout the volumes, studies about almost all Arab
countries, those of the Mashrek as well as those of the Maghreb. This Review adds, to the 18 Lebanese
communities, another one, the arbitration community, that is in essence
international, and on the internal level, brings closer the first ones, which
is not its lesser merit.
The review of the Lebanese Review of Arab and International
Arbitration’s first volume foreword shows that the 50 following have
concretized, issue after issue, the hopes of its founders, conscious of the
difficulties they were going to face, and that they summarized in an
expression: “vast horizons, vast program…” This program of arbitration
development in Lebanon, starting with the establishment of this Review, takes place and is paired with
other initiatives: the teaching of arbitration law has found its place in
universities; colloquiums follow one another, and young lawyers specialized in
arbitration are integrating the Beirut, Paris, London or even the Golf’s major
law firms. It is allowed to hope that those experiences will come and inspire
new pens that will always and even more enrich this Review, now adult, and to
which we can only wish a continuance in its successful establishment.
Charles JAROSSON
Professor
at Paris II University
Editor
of the Revue de l’arbitrage
According to the modifications introduced to the Code of civil procedure
in 2002 (article 762), and since the issue was raised during the previous
government’s sessions, the decision was taken as to the necessity of submitting
the arbitration clauses inserted in the Lebanese State contracts, especially in
the international of legislation and consultations. Most of the times, the
government observes that decision.
This procedure contributes to the guaranteeing of the Lebanese State’s
best interest: indeed, the assortment of all the elements and rules referred to
in the arbitration clauses are of a very high importance. One remembers how the
consequences of previously issued international arbitral awards, lead to
decisions that were, during extended periods, against the government’s
interests. It is also to note that international contracts are not necessarily
“administrative” contracts, but that they are usually signed with donors that
try to impose arbitration clauses they are most comfortable with(1).
What about this volume,
Far from the theoretical issues that preoccupies many of those who look
on arbitration with enthusiasm and passion, this volume publishes documented
articles about the arbitration clause, the principle of its seperability and the
supervision and cooperation role of the State courts.
This critical issue raises a true problematic about
the “duality” and the “complementarity” between the arbitrator and the judge.
Furthermore, a topical subject is added: the
settlement of disputes relating to Internet domain names and commercial
trademarks.
As for the Lebanese case-law, let us say that it is back to its
normality while waiting for the newly formed judicial chambers to further
practice the legislative characteristics of commercial and civil arbitration.
We also publish some by – laws that organize and
accompany arbitration in Sudan.
The
Lebanese Review of Arbitration
Why not dedicate a special
volume, every now and then, to publish valuable academic works and writings
that have not yet been selected for publication?
Sure enough, those
works, among which are thesis that have been successfully defended, include all
together comparative arbitration law, commentaries on the Lebanese and Arab
case-law, and start out with texts that specialists are working on its
development, assessment and interaction with effective practice.
That’s how we decided
that the interest of publishing academic works, at a cost that does not exceed
a single volume price, could be a good opening sign in the Lebanese, Arab and
International arbitration field.
We had already
published, over several consecutive volumes, and in Arabic, a thesis relating
to arbitration in Saudi Arabia (volumes 38 to 41).
Thus, the main asset
of this volume is that it includes the entire thesis of Dr. Rayanne ASSAF,
which was closely directed by one of the members of this Review’s editorial
board, Professor Charles JAROSSON.
We wish the reader a
useful reading.
Ibrahim NAJJAR
[1] I. NAJJAR, Chroniques de droit privé libanais, 2001, Preface by J. CARBONNIER and foreword by F. TERRE.
(1)
The