text:
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.
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!
(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.
March-April 2000
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.
addition, the dedication of issue 13 to Tunisian law has delayed the
publication of numerous Lebanese awards and important judgments in the matter.
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.
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.
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.
thee well, then…
Ibrahim NAJJAR
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.
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.
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:
1- The arbitrability of international disputes, putting the State into question where concessions of public service are concerned (article 77, New Lebanese Code of Civil Procedure imperatively attributes an exclusive competence to the Lebanese courts);
In the case of signature by Lebanon of a bilateral international convention,
expressly foreseeing recourse to institutional or ad hoc arbitration.
The hierarchy (and the/ supremacy) of the convention, compared with the
constitution and domestic laws (art. 2, al.2, New Code of Civil Procedure) do
not fail to provoke disturbances. In light of the numerous conventions already
concluded, the environment favorable to arbitration does not fail to transform
the image of a Lebanon searching to renounce its image and its stated policy,
regardless of good faith in the execution of a contract.
A question of culture, as a consequence.
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.
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.
(1) « He who seeks to
disavow an act performed by himself, his attempt is regarded against him » (personal
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).
addition, as we announced in issue 20, Lebanese jurisprudence modernizing the
theory of Estoppel is reported on.
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.
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
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
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
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
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.
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
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
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.
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
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.
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
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
Foreword to Volume 54
This issue contains very interesting articles. Indeed, first, in the French section, we can find an academic thesis on the prima faciae nullity of an arbitral convention that deals also with pathological clauses. Second, in the Arabic section, an article focuses on the role of the autonomy of will in the control of international public policy in international trade contracts. In both cases, a particular attention should be drawn to the writing of arbitral clauses, which, notwithstanding the spectacular development of arbitration in the Arab world, still suffers from lack of knowledge and expertise.
Which increases this volume's interest, this time, is also the critical contribution that sheds the light on the recognition of Estoppel in French law. It should be noted in this regard that this principle was well known in the Ottoman Medjella that considers that: "He who contradicts himself by reconsidering what results from his own act should be stopped". Another article deals with the disruptions of the French case-law when dealing with the jurisdiction of French administrative courts to settle disputes related to arbitration in administrative contracts.
In the Case law section, one can also refers to two recent decisions rendered by Egyptian courts and related to an international administrative contract containing an arbitral clause. The first one deals with an anti-suit injunction aiming to censure an arbitral clause for lack of authorization by the competent authorities. The second is an annulation of the award rendered in the case for the same ground; the authorization of the competent authorities being a duty on both parties and not just one of them.
One can also read in the Case-law section the latest decisions rendered by British courts, considering that the appointment of an arbitrator in the arbitral clause with a reference to his religious believes is to be considered along with the award rendered accordingly as contrary to the European guidelines and thus void.
This volume should be regarded not only as a new issue but also as a renewal of the development of arbitral culture.
Ibrahim Najjar
While succinct, this volume of the Review comprises some important articles pertaining to the Maghreb and the Levant legal framework, and especially to comparative French Law.
The Arabic part includes an important study about the annulment of the arbitral award in the Kingdom of Morocco, where Law number 05-08 (Al Zahir Al Charif number 169-07-1 Zi Al Kaada 1428 - November 30th, 2007) has re-organized arbitration and conventional mediation. The study is written by distinguished young jurist in the Kingdom that actively participated in the success of a Congress over the interpretation of the said Law, which took place, in 2008, in the STAT University. This article could be considered, giving especially its numerous references, as an explanatory comment of the new law, concerning what it has addressed in the arbitration field.
The Arabic part also publishes, in the case-law section, a rare decision of the Beirut Civil Court of Appeal over a delicate subject which is the transmission of the arbitral clause with (or as a result of) the cession of the contract which includes it. What makes the said decision even more important is that it also consecrates the Estoppel principle in an institutional arbitration that was held in Lebanon.
As for the French part, it does not lack of contemporariness or glow. In fact, on the 13/1/2011 a new French law has been issued via a Decree: it amended the domestic and international arbitration provisions, as well as its regime, so much that one can now say that there is, alongside the judiciary and the administrative Courts order, an arbitral order. Never before Arbitration Law has had that much independence and autonomy. Our Review has the privilege of publishing the first commentaries of the said law, written by two persons that contributed the most to the said amendment. Those articles highlight the new amendments brought to a law that has always influenced arbitral case-law and doctrine in Lebanon and the Arab countries. Therefore we publish the Decree with its annexed report submitted to the Prime Minister as drafted by the French Ministry of Justice.
Ibrahim NAJJAR
Seminars related to arbitration are being held one after the other in Lebanon. Arab and European parties find in these seminars an opportunity to exchange cultural and scientific credentials. Lebanese or Arab Political turmoil has not affect. Lebanese Arbitrators are multilingual and polyvalent; they acquired skills in several laws and share among them the arbitration scenery of the Mediterranean and Gulf region. Thus, and in addition to what is published in the present volume, other publications will provide the reader a review of the excellent seminar that has been organized by the French Committee of Arbitration that was held at the beginning of April in Beirut
Main actors of the Lebanese judiciary life in matters related to arbitration have been solicited to publish their contributions and lectures in this volume. The later reflect the concern of rigor and conforming to major principles of arbitral justice. Even in the case law section, and notwithstanding the lack of important decisions rendered by higher courts, one can note that the Tribunal of First Instance of Metn has rendered significant decisions showing the important role of the judiciary to assist arbitration. Moreover, a short study highlights the importance of arbitration to solve maritime disputes.
Arab countries' law is however not neglected. A Qatari a rare decision can be found in this volume as well as another critical contribution that sheds the light on the exequatur in Syria and that does not fail to feed the reader with a serene reflection in a context of turbulence vowed to other demons than pure law.
In a context of works and reflections on the new French reform related to arbitration, this Review has the pleasure of welcoming enriching contributions coming from most varied horizons
Ibrahim Najjar
An important number of Lebanese and French law specialists, participating to a seminar, have made their point on some of the particularities of arbitration as foreseen in the Lebanese case law: Estoppel, state contracts, amiable composition, commercial agency etc. This Review publishes the main contributions to this seminar related to "Franco-Lebanese crossed views on arbitration" and organized by the French Committee of Arbitration in collaboration with Saint Joseph University under the auspices of the Justice Ministry. Most of these contributions are in French
In the Arabic section, an article on Iraqi-Lebanese comparative law occupies around fifty pages. It is one of the densest studies written on the subject; it is especially welcomed since its author has been presiding for already years the Tribunal of First Instance of Beirut; he has the mission of appointing arbitrators and cooperating with arbitral tribunals
Two recent decisions related to international arbitration close this volume
Ibrahim Najjar
This volume is distinguished by an abundant Arab and Lebanese case law, particularly from the Moroccan judiciary to which one should add a recent decision from the Court of Appeal of Doha, Qatar.
Generally speaking, we can assert that basic principles governing domestic and international arbitration are being taken into consideration and are governed by acceptable solutions in most Arab countries, despite the disparity and diversity of the legal terminology used across the Gulf, North Africa and Lebanon.
Tunisian, Egyptian and Libyan case law has been missing regarding the wide spread of the Arab spring and its consequences on courts' activities. But, soon hopefully, these countries will recover their former legal activity.
As to articles, it is noteworthy that we are re-publishing in this volume an article that formerly contained typographical errors, as well as valuable contributions on the arbitration proceedings before the Syrian State Counsel with regard to the latest case law in administrative contracts, as well as general observations on the immunity of the arbitrator within the exercise of his functions that is a delicate issue. Let us hope that a Code of ethic will be adopted in this crucial issue.
Ibrahim Najjar
While the "all electronic" provokes the disappearance of some prestigious Reviews and their replacement by e-versions imposing new viewing and reading habits, our Review forms the project of accompanying this technological revolution without abandoning the paper. First legal Review to publish a trilingual analytical index and forewords on the Internet in 1996, our publication is preparing to join the electronic world. Comments and suggestions from our readers are most welcomed in this regard.
As for arbitration in the Arab countries, it experiences two complementary phenomena: the normalization of arbitration and the recognition of arbitral awards whether international or domestic, on the one hand, and the lack of new materials in the field, on the other. It is probably in this context that the new Saudi arbitration regulation has been introduced. While preserving the features imposed by Shari'a and that have become widely commented and aware of in the business field, the new Saudi regulation confirms most of the solutions adopted by other Arab States in matter of arbitration. This is strongly emphasized by the conditions of form and validity of the arbitration clause and by the admission of classic principles in matter of arbitration. This reform remains however theoretical. Practice should confirm the evolution that took place in this regard. A brief Arabic commentary of this new legislation is therefore suggested and is limited to a short description of said regulation without stressing on unnecessary or redundant developments. Decisions of Qatar, a comparative review with the Emirati Law (UAE) along with the latest Lebanese case law complete this panorama in the Arabic Section.
In the French section of this volume, an article on multiparty arbitration in Lebanese law will not fail to attract professionals. The publication of large extracts of an ICC award, rendered in French by a European arbitral tribunal between commercial entities also provides practitioners with a kind of benchmark for comparison. This award has been published for its controversial outcome before Lebanese courts, and illustrates the "Lebanese arbitral case law" section of this volume.
Enjoy the reading!
Ibrahim NAJJAR
[1] I. NAJJAR, Chroniques de droit privé libanais, 2001, Preface by J. CARBONNIER and foreword by F. TERRE.