SUMMARY OF FOREWORD
This law journal of arbitration is published in Lebanon, and hopes to benefit from the legal tradition of a country standing at the crossroads of the Gulf and the Mediterranean.
It is a journal which is written, in the main, in Arabic, so that the nascent world of arbitration in the Arab world benefits from a serious and open forum of learned discussion in a field which should thrive on the propensity towards arbitration of the Islamic legal tradition. Here, the confines of arbitration are much less limited than in the western world, where judges tend to look with awe and distrust at the operation of arbitration outside the narrow civil and commercial legal fields.But the journal will also include extensive summaries in French and in English so that it can also be of use to the wider world, and offer, from Lebanon, a serious and regular scholarly home for Arab arbitration.
It is hoped that the Journal will be published regularly, though with different rhythms ( annually to cover cases, quarterly for reviews and articles). Its launch owes to the hard work and the trust of several world authorities in the law of arbitration, inside the Board of patrons and in the Journal's editorial Committee.
The Journal intends to cover five main areas, of practical as well as scholarly benefit: the first comprises articles and case-note reviews. The second includes the cases themselves, whether judgments or arbitral awards in Lebanon and other Arab jurisdictions. The third part includes relevant legislation and statutes. The fourth will provide news on arbitration, including past and future conferences and meetings. The fifth part will eventually offer a bibliography, as the scholarship in the field will no doubt be considerably enriched in time. These five parts will be supplemented by an analytical summary as well as an index in Arabic, English and French, with references to D ( doctrine, ie articles in part 1), Leg ( for legislation and statues, part 3,) A(Actuality and news, part 4) and B ( Bibliography , part 5). In the absence of a specific letter, reference is to the second part on cases and awards.
The journal hopes to cover authoritatively the most important areas in this new and important field, and looks forward to its readers' feedback and commentaries.
This second issue of the Review* is a one-time volume, which is less voluminous and less jurisprudential' than the annual issue. The annual issue will be consecrated, as previously annouced, to a comprehensive review of case-law in Lebanon and in the Arab countries.
We have however endeavoured 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 Colloque de Damas or 5 - 8 Octobre 1996, which was organised 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 dspute resolutions (ADR). Thus will arbitration serve as a lever and principal vehicule 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 organises in Beirut, on 17 - 19 December 1996, by the Lebanese Association for Arbitration and the Association Arabe de l'Arbitrage international (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 entiched, 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 outstandintg bill of law.
The next fifth and sixth issues of this Review will be compelling the reports and workpapers that have been available during the international conference that was held in Koweit 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 favoured by the Unites Nations' establishment of a model-law on international trade arbitration, but also by the urgency of foreigh 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 summarised in Arabic. This is indicative of the international trend reaching our region, as the Arab world, which is bibingual 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 ws ust 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 decisioins. 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 favour, or against, the recourse to arbitration.
Unlike the first issue however, we are now publishing, together with the full decisions wich we consider significant, the legal rationale whih 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 centres 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 an awareness for the value of law's peranence 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 begining 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 fifdelity. 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 awrds 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 yto contribure 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 Lbanese/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 Koweit 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 Arav 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 Westerc countries, it shall be a pleasure for us to receive and to publish informations, decisions and arbitration awards.
An effort for making critical commments 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 subsribers, 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 modidied 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 realise 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 maitain 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 !
ECONOMICAL MUTATION AND ARBITRATION
(Symposium of Tunis of April 1999)
This volume is the result of an encounter held in Tunis/Carthage with the Tunisians lawyer. The latter, who met with their Europeans and Arab friends for the Symposium of April 26 and 27 1999 concerning "Economical Mutations and Arbitration, celebrated the anniversary of the Tunisian Code of Arbitration of 1993, which adopted mainly the rules of UNCITRAL MODEL LAW. However, many important subjects concerning Arab and International Arbitration were discussed at the same occasion.
The Symposium was a of 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 revive.
Ibrahim NAJJAR
March-April 2000
This double issue has been
made necessary by the development of arbitral activity in Lebanon. Most
of the contributions at the Beirut conference of 11-12 Oct 1999 on
applicable law and the control of the judge deserved to be published.
In addition, the dedication of
issue 13 to tunisian law has delayed the publication of numerous
lebanese awards and important judgments in the matter.
It is therefore not as a
measure of economy – this issue is twice the size of a normal issue
anyway, nor is it for lack of diligence that we have put together the
works and case law in a common issue, 14 and 15. The reader will find
greater simplicity in the presentation of the material, and more
coherence in a common arbitral environment.
Fare 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 Shariah is in close contact with the solutions of commercial law. Such a publication is an event for the law of arbitration, even if the confidentiality of the awards is meticulously preserved.
In
addition, Lebanese arbitration awards are published is this issue, along
with an international arbitration award rendered in Lebanon by a panel
applying foreign law. This
is the second international award that we have published in this Review,
after that published in number 1 (p.88/n°38).
Contrary to the previous award, however, the one we publish in
this issue was just annulled by a judgment of the Court of Appeal of
Beirut, given by a simple majority, for the disregard of the principle
of contradiction and guaranties of rights of defense.
In a way, this proclamation of the Lebanese judge will certainly
have repercussions.
Finally,
the Articles section of the Review continues to put forward a thoughtful
combination of varied and diverse studies.
The problems of international arbitration are dealt with at the
same time as European, American, Arab and Lebanese laws.
In
this way, the Review continues to address itself to those Arab readers
wishing to be informed on matters of comparative and international
arbitration. Conversely,
Western readers will find the references and the information which Arab
arbitration needs to claim an existence which is confirmed more and more
each day.
The
18th issue of the Lebanese Review of Arab and International
Arbitration again covers the development of arbitral jurisprudence in
Lebanon, also in Jordan and Tunisia. In addition, articles of doctrine, in
Arabic, French and English offer the reader a glimpse into current events
in the field of international exchanges and necessary adaptations in
matters of culture and arbitration law.
In
this regard, it is necessary to point out that the elementary principles
and general characteristics of domestic and international arbitration do
not result in being the object of a debate, in doctrine as in
jurisprudence, at the same time that more elaborate solutions are adopted.
A law with several tiers, in sum. The coherence of such a law suffers. The
articles published in this issue are as varied as they are diverse. Thus,
next to the recurrent problem of public order, questioning on agreed
arbitrator and an account of arbitration on the subject of petroleum
law and international investments are covered.
Among
the published decisions reporting – the most recent – that which made a
literal application of the Lebanese-Syrian Judicial Convention of 23
April 1997 (See this Review, vol. 4, “Legislation,”) and
requires double exequatur in Syria and in Lebanon for the recognition and
execution of arbitral awards rendered in these countries. An application
which shows at what point one can, under color of the supremacy of
international conventions (art. 2, 2, New Lebanese Code of Civil Procedure
of 1983/85), thwart the Lebanese law of international arbitration.
Ibrahim NAJJAR
Volume
19 of the Review is essentially presented as a first evaluation
of Lebanese jurisprudence on the matter of State contracts in view of
domestic and international arbitration. The two principal judgments of
the State Council were published, with the sometimes passionate
commentary that they aroused. A draft law, modifying the (“new”)
Lebanese Code of Civil Procedure is being studied under the initiative
of the Prime Minister and the Minister of Justice. The obvious aim of
this approach is to authorize, while regulating the system, domestic
arbitration (international arbitration being already admitted) for
State contracts, excluding the exercise of a power in Cassation when the
action for annulment of an arbitral award is dismissed by the competent
Court of Appeal. The ideas however can still develop. This is why we
have not published the draft put into circulation and still under
discussion.
In
this regard, one must note that serious problems risk being left in
suspense:
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 Lebaneses courts);
2-
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.
On
another level, this issue publishes the new Jordanian Law on Arbitration
(inspired by the system of law put forward by the UNCITRAL), next to the
jurisprudence of the Hashemite Kingdom.
Finally
we publish (it does no harm just this once) the speeches given during
the ceremony marking the publication of the “Chronicles of Lebanese
Private Law” appearing in 2001.
Vanity,
in of the form confidence in the reader.
Decidedly,
the Lebanese and Arab law of arbitration does not cease to surprise and
evolve. Following the reform of the Jordanian law (see Volume 19 of this
Review), it is the turn of the Lebanese law to react at the same
time to the legislative framework (a draft law responding to the
restrictive case law of the State Council – see our Review, n°
19, to definitively establish the arbitrability of state contracts, even
in domestic law) and to the jurisprudential framework. The
latter, once again, appears to be varying, in a great deal, according to
the judges, depending on the composition of the state Council. If it is
true that arbitration goes the way of the arbitrator, it is not less
true that state jurisprudence follows the judge. Thus, the next volume
(21) of this Review will publish recent decisions of the Supreme
Court, which has for a long time remained shy and inactive on this
matter. For provoking the retreat of some and the reorganization of the
division (purely administrative) of work between the civil chambers –
« small
causes, great effects »
– the theory of estoppel is expressly consecrated in case law,
following its dedication in article 100(1) of the preliminary
dispositions of the Ottoman Civil Code (Medjelle). For the time
being, we publish in this volume the judgments of various divisions of
the Court of Appeal of Beirut, along with certain arbitral awards,
allegedly spare.
The
evolution of the trends of Lebanese case law deserves a systematization :
this is the essential contribution, strongly articulated, which we
publish in the French section, marking without a doubt a step of a
recent past which is already largely ended.
On
the international front, the evolution of the arbitration law appears
also through French case law facing the admission of « compulsory
arbitration »
– which is only pure incoherence, if one wishes that recourse to this
method of conflict resolution to remain voluntary and free. A study is
devoted to this and is published in Arabic as well as in English.
Finally,
so as not to fail the tradition of openness and transparency, rarely
found in the Arab countries – which are averse, inexplicably, to
publish decisions and judgements 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 perserverance.
(1)
« He
who seeks to disavow an act performed by himself, his attempt is
regarded against him »
(personal translation ).
In
this issue, priority is given to the trilingual analytical tables of
issues 11-21 of the Review. Placed in the center of this volume, they
form, along with the tables of the first 10 issues published in volume
11, a coherent whole destined to facilitate research. The tables are
published in three languages on the Review’s website (http://www.dm.net.lb/rla).
In
addition, as we announced in issue 20, Lebanese jurisprudence
modernizing the theory of estoppel is reported on.
Also
published in this issue, alonsgide Egyptian state jurisprudence on the
subject of domestic and international arbitration, is the new
Palestinian arbitral legislation (there is no other word to describe the
legislative act of the Palestinian authority in the West Bank and Gaza).
Dated in the year 2000, this law actually has the objective of a series
of measures destined to create an arbitration center. These measures are
financed by funds donated to equip the Palestinian territories with a
credible structure of arbitration, with all the preliminary searching
that can be imagined. Therefore we publish this law with an introductory
commentary, wishing the professionals in charge a good journey and
infinite patience. As this new law must clear away previous regulations
dating from the time of the British Mandate.
The
reader will perhaps be surprised at the welcome we accord to a
university research project on the subject of the law of arbitration
within the framework of the North American NAFTA agreement. However, a
trilingual publication - which includes subscribers in 18 countries
already - must observe the evolution and comparisons of nature to
arouse the interest of the inveterate researchers that we sometimes are.
Finally,
we do not forget either the questioning sparked by the actuality of the
“foreign arbitral awards in Saudi Arabia”, or our perpetual Lebanese
debate on “arbitrability in the matter of State Contracts and
commercial exclusive distibution 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 consacrated 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.
(http://www.idm.net.lb/rla).
Ibrahim NAJJAR
FOREWORD To volume 26
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[1].
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 excellency. 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
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
FOREWORD to volume 30
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
FOREWORD to volume 31
In this volume, we publish next to the Lebanese State courts decisions,
8 decisions of the Egyptian tribunals (Cairo Court of appeal) and of
Emirates’ tribunals regarding recourses against arbitral awards or
arbitration clauses.
The arbitration, especially in Lebanon and in Egypt, is in constant
evolution.
The Court of Cairo follows the latest tendencies of the legal doctrine
and case-law in international arbitration. Two brief notes focus on that
evolution and prove its utility. Thus, from now on, one may certainly
consider that arbitration is growing, since a number of years, and that
arbitral panels are acting like State courts, even if they are more
specialized in commercial, international and professional disputes.
This is why, in addition to interesting studies concerning mediation, we
also publish a sort of practical guide to basic concepts of arbitration
law, for our readers from the Arab countries.
Ibrahim NAJJAR
FOREWORD to volume 32
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
FOREWORD To volume 33
Needless to reiterate that arbitration is neither a substitute for, nor a competitor to State justice. In fact, arbitration complements the justice of the State and constitutes its necessary supplement. Individuals and legal entities willingly have recourse to arbitration, thereby giving more stability, trust and serenity to their relationships.
Nowadays, relations among individuals and companies have become more diversified and complex. Indeed, they are no more restricted to a country’s territory or to a single language; these new data have generated a kind of disputes, which require for their solution an acute expertise and accurate knowledge in their relevant subjects and activities. Such a specialization can hardly be found in the State justice. Therefore, our concern in the Ministry of Justice was to put at the disposal of judges modern technological means to facilitate their access to Lebanese and foreign legal database to pave the way for the swift resolution of disputes and to allow judges to carry out their duties with a high standard of competence and efficiency.
Nevertheless, the most important fact, for arbitrators and judges alike, remains to ensure their total independence and compliance with the code of ethics which should govern their judicial activity.
Recognized arbitration centers use their best endeavors to ensure that arbitrators, including those appointed by litigant parties, are selected among independent persons excluding those who have any close links with litigants or those who have already given their opinion in the dispute. This is also applied to arbitration proceedings since these centers try to make sure that arbitrators, notably the ones appointed by litigant parties, abide by the rules and principles that aim at ensuring the transparency of procedures and at promoting trust in the awards handed down by arbitration courts.
A similar effort should be made in Lebanon in the State justice which has suffered from interference of the agencies and the authority, thereby undermining citizens’ trust in this justice system which should be their final recourse whenever their liberties, rights or dignity are at stake.
A committee of judges has recently accomplished the mission I had assigned to it, that is to draft the rules of ethics for judges and proclaim the values and principles which they should abide by in the exercise of their professional duties and in their private life.
With a view to highlight the importance of this achievement, the draft Code should have been declared to the media and public by the Head of the judicial body, rather than by the Minister of Justice. However, it remains to be seen whether the fate of these rules of conduct will be effectively observed and whether these proper and noble principles will not remain a dead letter.
Dr.
Bahige TABBARAH
Ex
Minister of Justice
14.3.2005
FOREWORD To volume 34
This issue is characterized by the volume of its legal articles as well as by their scientific level and linguistic and geographical variety.
The English part contains an article on Lebanon’s importance, neutrality as well as its legal system regarding international and Arab arbitration.
The French part encompasses a remarkable article that explains the impediments of the international arbitration and the jurisprudence issued by the Cairo Court of Appeal regarding international trade.
We chose to publish this article in French based on the text we received from the author, after having published in previous issues as well as in this one several provisions issued by the Committee he presides, knowing that this article quotes a conference delivered by him in France.
Aside from this article, we also publish a commentary on an interesting decision issued by the Cairo Court of Appeal, by virtue of which it has repealed the decision issued by the president of another department adjunct to the same court. By pure coincidence, the article that we are publishing in French is that of the aforementioned president.
Moreover, we are publishing another article in French on the diplomatic immunity subject[1] 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[2].
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
FOREWORD to volume 35
Two events, the first Lebanese-Italian, the other Lebanese-Saudi influenced the content of this volume.
Indeed, on the eve of holding in BEIRUT, in the context of the activities of the Beirut Chamber of Commerce and Industry, of a seminar on arbitration as a mean for dispute resolution in light of the rules of the Arbitration Chamber of Milan, we publish without previous coordination, an article in French on the rules of arbitration of this Chamber and, an article in English on the choice between ad hoc arbitration and institutional arbitration.
This seminar will precede three days, November 19 to 21, 2005, in SHARM EL SHEIKH, dedicated to arbitration and its comparison to the State justice, where a tribute will be paid to the memory of Philippe FOUCHARD and his numerous family members who died tragically in those unpredictable places.
The second event marks the accession of Kingdom of Saudi Arabia to the World Trade Organization (WTO), as well as the issuance of a list of arbitrators recently accredited in this country. Needless to say that these two events, taking place in 2005, will affect the evolution of arbitration in the Gulf countries.
On this occasion, we deemed it appropriate to seek to promote the publication of this Review, as well as the launching of our columns, or even the publication of a special supplement dedicated to the Kingdom of Saudi Arabia: special agreement of publication has been signed with young and dynamic jurists of this Country, it being understood that their elders, with whom we insist on maintaining and preserving strong ties and cooperation, will be able to measure the extent to which their pioneering initiatives could generate editorial and arbitration vocations.
On the other hand, this issue remains faithful to its engagements: a doctrine of quality tends to elaborate on the incidence of filing a recourse in cassation in case of refusal of the suspension of execution, as well as on the central role of the judge to support on the organization of the arbitration procedure. Otherwise, the Lebanese and Egyptian jurisprudence continues to furnish the references in Arabic for the interpretation of judges, sometimes of arbitrators, in the humblest as well as in most prestigious issues.
It is to say that our pages remain respectful of their well informed readers.
Ibrahim NAJJAR
This issue No. 36, the last for the year 2005, calls for evoking both the "Revue" in general and the content of this publication.
In fact, this issue marks the 10th anniversary of the Revue, which was first published during the Summer of 1996, and extracts from its various issues have been published on the internet. Indeed, our Revue was the first law magazine to be distributed over the web in 3 languages, particularly in Arabic – not a technically easy job at the time.
The key aspect of this undertaking has been not so much the regularity of distribution, as the need to ensure that there is no delay in the articles and information reaching the entire world in Arabic, English, French, Spanish and Italian. The jurisprudential trends in the Arab World as well as the latest news, laws and regulations of many arbitration centers around the globe were made available for the Arab reader; which testifies to the continuously increasing vigor and passion for arbitration.
Subscribers – and loyal friends – are certainly more numerous in Lebanon, given the existence of distribution facilities and density of Lebanese-specific materials in the Revue, and since arbitration has been widely expanding in Lebanon and has continued to do so despite all the ordeals encountered. Lebanon continues to play the role in the "cultural modem" between East and West and even within the East itself …
However, Arab arbitration specialists, despite some occasional material and cultural constraints, have started to get acquainted with the Revue.
Meanwhile, it has not been possible to publish, on the Internet, more than the analytical tables and the foreword of the issues; the costs of a complete publication would be disproportionate to the subscription fees. Nevertheless, even this partial publication has caused some embarrassment: we have been receiving numerous, almost daily, requests by students and researchers looking for reference material and have been unable to send them the published articles by fax or by mail…
As to the content of this final issue for the year 2005, it includes miscellaneous articles about arbitration in equity, jurisprudence of Egyptian courts (in Arabic), provisional measures (in French), a study about language of arbitration in the absence of agreement by the parties, in addition to a study about Dispute Boards and ICC regulation (in English).
This issue also contains a report about the conference held in Sharm El Sheikh, about the role of justice as a support for arbitration, a seminar organized by the French- Arab Chamber of Commerce in Paris as well as the arbitration jurisprudence in Lebanon and Egypt.
We will be publishing soon the Jordanian arbitration jurisprudence.
We hope that year 2006 will leave behind it the tragic events and blind terrorism that has bathed the region in blood; we do hope that it will open up the way for a firm will to overcome the disagreements in order to establish a solid understanding in an area that has, for many years, been trying to move forward and recover its fundamentals of culture and identity.
Foreword to volume 38
Three jurisprudences, published in this volume, should be pointed out.
The first jurisprudence refers to the exequatur of an arbitral award regarding a B.O.T contract signed by the Administration. After being qualified by the president of the State Council on the 15/4/2003, as an administrative contract that does not match with the qualification of international contact which leads to the refusal of the exequatur, the Dispute Section of the State Council decided on the 21/2/2006, that this same contract is arbitrable, despite the fact that it is concluded between the public establishment for investment promotion (IDAL) and a private company, and granted it the exequatur.
This decision indicates, after the promulgation of the 2002 law, a reversal of the CELLIS and LIBANCELL precedent, that has been for long criticized by Lebanese and international doctrine.
The second jurisprudence is a decision of the Supreme Court rendered on the 27/4/2006 in another famous case relating to an arbitration that was qualified abroad (in Switzerland) as an international arbitration, while the appeal court described it as an internal arbitration. The Supreme Court then decided that it was an internal arbitration taking place abroad, despite the proof of foreign partnerships.
The Supreme Court also decided that the discussions and deliberations between arbitrators are not submitted, under the institutional arbitration proced