25 June 2022 08:36 PM

COURTS > The Internal Arbitration Back


 The concept of arbitration
The Lebanese legislator has set the rules of arbitration in Article (778) and its subsequents of the Code of Civil Procedure (CCP) and has imposed that arbitration remain governed by trial fundamental principles under provisions of Articles (776) and (777) of the Code of Civil Procedure, whether arbitration, to which both parties accepted to resort, was ordinary or absolute, despite the fact that he has endowed each type by certain type of procedures.
Difference of arbitrator authorities extents according to arbitration type
Ordinary arbitrator authority
The ordinary arbitrator settles the litigation filed thereto, according to rules and procedures of ordinary trial, with the exception of what is inconsistent thereof with arbitration procedures (Article 776/2 CCP). In terms of trial procedures rules, same procedures applied at the Court of First Instance will be implemented herein, including in particular rules related to evidentiary testimony of witnesses, Article (266/CCP), expertise Article (313/CCP), implementation of writing, Articles (174 to 178/CCP) and Article (783/CCP), time limits Articles (420 & 421/ CCP), as well as all rules pertaining to exchanging pleas and presenting documents. However, by exemption, rules related to subpoenas are not applied Article (442/CCP), notification Article (398/CCP), and trial crimes Articles (493 & 497/CCP). As for the applicable law on basis of litigation, the arbitrator ought to implementing “law of positivism” with all its rules as to what ordinary courts do.
FUNDAMENTAL PRINCIPLES
There are some principles that the arbitrator should adhere to, regardless of arbitration type; some of which the text that has explicitly stated the following: such as principles related to Public Order and fundamental principles of the trial as the principle of “in presence”, respect the “right to defense”and “verdict justification”, Articles (776 & 777/CCP), and adherence to the scope of litigation, Articles (365 to 368/CCP). Some of which are those derived from principles or general rules of the law: such as the arbitrator authority to interpret law, interpretation of international treaties, and his commitment to comply with description or legal merits determined by both parties. He has to raise pure legal grounds voluntarily. In case the arbitrator violates any of these principles, the result will be nullification of this decision, whether for exceeding the limits of his mission pursuant to provisions of Article (800/CCP) or for not taking into consideration the rights to defense pursuant to provisions of Article (800/4/CCP).

Difference of arbitrator authorities extents
The ordinary arbitrator settles the litigation filed thereto, according to rules and procedures of ordinary trial, with the exception of what is inconsistent thereof with arbitration procedures (Article 776/2 CCP). In terms of trial procedures rules, same procedures applied at the Court of First Instance will be implemented herein, including in particular rules related to evidentiary testimony of witnesses, Article (266/CCP), expertise Article (313/CCP), implementation of writing, Articles (174 to 178/CCP) and Article (783/CCP), time limits Articles (420 & 421/ CCP), as well as all rules pertaining to exchanging pleas and presenting documents. However, by exemption, rules related to subpoenas are not applied Article (442/CCP), notification Article (398/CCP), and trial crimes Articles (493 & 497/CCP). As for the applicable law on basis of litigation, the arbitrator ought to implementing “law of positivism” with all its rules as to what ordinary courts do. The absolute arbitrator authority to settle litigation: Article (777/CCP) states that “in absolute arbitration, the arbitrator is exempted from implementing law rules and ordinary trial procedures. They render a judgment under the principle of equity”. The second paragraph adds: “to be excluded from such exemption, law rules pertaining to Public Order and fundamental principles of trial procedures; especially those related to the “right to defense”, “verdict justification”, and “arbitration rules”. The fact that “absolute arbitration”deviates from law rules, both parties shall unveil their will related to that regard, and agree thereupon explicitly, pursuant to Article (777/3/CCP). Justice in equity is nothing but a faculty (faculté) determined for the arbitrator. He may therefore consider that equity, by itself, stands by the implementation of the same law rules.
MANNER OF TRIAL MANAGEMENT
The arbitrator assumes the management and the investigation at the trial. He enjoys the same authority given to the judge in this regard; he may therefore order to conduct any investigation authorized by law in order to complete the pretexts of the litigants as evidences, Article (135/CCP). He may also request from the litigants clarifications concerning facts or legal points that he deems requisite for the ruling on the litigation, Article (371/CCP). Moreover and as necessary, to assume any investigative measures, he must therefore issue an order for such measure, even without the knowledge of any of the litigants, Article (374/CCP). However, in this case, and pursuant to the “in presence” principle, the arbitrator should inform the concerned litigant of the investigation input (occurring through expertise method) so that he will have the chance to discuss it before the arbitrator. It is also up to the arbitrator to seek reconciliation between both parties pursuant to Article (375CCP) without being obliged to do so.
RULES AND PROCEDURES OF THE TRIAL
After demonstrating the extent of authorities given to the arbitrators to settle the litigation, as well as the fundamental principles that govern the trial, examining closely the trial itself shall take place. Are treated below the location where the trial is taking place, the method with which the litigation was filed before the arbitrators, the litigants in the trial and the way they are represented, and the issue of intervention by third parties in the trial. Then are examined the procedures of this trial, its conduction rules, presenting pleas, memorandums, and documents, and the investigation required by the facts of litigation, statement of available evidences to prove it and up to the conclusion of the trial.
The“arbitration location” depends initially on the stance of both parties, whether in the arbitration clause or in a subsequent agreement. If there is a legal individual or an arbitration institution appointed by both parties for the organization of arbitration, it is therefore normal that the location of this individual or this institution is where arbitration will take place. This selection has practical importance since it is where procedures are concluded and the final award is rendered. Accordingly, is appointed the competent Trial Chamber or its President that has the jurisdiction to review and settle all issues that the law authorizes him to consider.
“Filing the litigation to the arbitrators”: Litigation is brought before the arbitrator(s) by the involved litigants or by the most impetuous one amongst them in accordance with Article (778/CCP). It is therefore compulsory to draft an instrument in which the litigation subject is detailed and defined and then the limits of the arbitrator’s task, after which no serious litigation would arise in this concern. It will be appropriate to include attendees during the trial on a certain date.
“Representation of litigants in the trial”: It is necessary to distinguish in this regard between “ordinary arbitration” and “absolute arbitration”. In “ordinary arbitration”, we shall use the mandatory rule provided for in Article (378/CCP) which imposes on the litigants (parties of arbitration agreement in this case) to seek assistance of a lawyer as an attorney in cases of undetermined value, or those which exceed the alleged value to be one million Lebanese pounds. As for “absolute arbitration” where litigants are exempted from implementing rules of ordinary trial procedures; therefore, they will have the option not to be represented by an attorney.
“Intervention in arbitration”: Arbitration agreement upon which is based resorting to arbitration is in its essence a contract binding only the parties who signed it. Therefore and as per the principle, it is reasonable to mention the necessity not to allow intervention and intrusion in arbitration. Article (786/CCP) stated, in this regard, that no third parties are allowed to intervene in the litigation before arbitrators unless litigants agree thereon. As for intrusion, the consent of litigants is not sufficient, rather the party requested to be intervened shall approve thereof.
The case differs during the challenge phase of the final award either by appeal, or by way of voidance; so that intervention and intrusion will be possible in accordance with public procedures implemented on trials before courts.
“Proceedings of arbitration”: After raising the litigation before the arbitrator according to the previously described conditions, he must proceed therefore with arbitration proceedings. The Code of procedures incorporated some scripts in this regard.
“Presenting documents and notification thereof by litigants”: If litigation has been submitted to the arbitrator under an arbitration contract in which the two litigants have revealed their demands, reasons or arguments, and declared their contentedness, the arbitrator shall therefore only render his award in the litigation within a specified period. However, if the litigants did not reveal all their motives in the arbitration contract, or if the litigation has been submitted to the arbitrator under a request addressed thereto by only one of the litigants based on a previous arbitration clause, the arbitrator therefore proceeds with appointing a hearing session to which he calls the two litigants and where each one of them presents his pleas and documents, when appropriate. All these submitted papers must be served to the other litigant through the method determined by the arbitrator which ensures that it took place. Notification is not served in the determined manner to notify judicial trial, since the arbitrator has not at his disposal judicial assistants. If notification has not been served according to the determined conditions, it does not lead but to invalidity of the final award. Whilst in case it is proved that the litigant at the appropriate time has previewed the mentioned documents or even has the chance to preview them.
“Conclusion of trial”: The arbitrator(s) shall schedule the date on which the lawsuit is considered under scrutiny or debate in preparation for the issuance of the decision thereon. The trial conclusion date is the maximum date beyond which no plea or document can be submitted. This date should be prior to the expiration of arbitration period. The arbitrator must not undertake the conclusion of the trial but after reasonably concluding the investigation.
“Investigation in the lawsuit”: It is represented by the overall procedures which aim to provide the arbitrators with various confirmation elements which assist in the formation of their convictions. In principle, the rules stated in law shall be applied on the ordinary arbitration concerning the investigation in lawsuits before ordinary courts.
These rules are adopted on the process of admissibility of evidence acceptance in order to prove facts and legal tasks upon which were founded the demands of both litigants such as: written proof, witnesses, evidences and other proofs. The law entrusted the arbitrator with the authority to verify the validity of a hand written document or signature through comparing it with other documents pursuant to Articles (174 to 178/CCP). He may also hear the witnesses without having them take the legal oath. However, he has no authority to force them to do so. If they failed to attend or abstained from answering his questions, he refers therefore to the Court President who is competent to examine the litigation in the absence of arbitration for sentencing them by the prescribed sanctions by law in accordance with provisions of Article (779/3/CCP), as well as for the judicial delegations, Article (779/3/CCP), in order to obtain the testimony of witnesses residing in remote areas. In case of multiple arbitrators, they are all involved in the investigation unless arbitration contract allow the delegation of one of them for such purpose, Article (779/1/CCP).

Definition
The authority to adjudicate in litigations refers, in principle, to the Judiciary regulated by the law which determines also the methods to resort to the courts and the procedures adopted before it, in order to settle the cases. However, the law did not make resorting to the Judiciary mandatory for the litigants in order to settle their litigations; in fact, the law allowed them, whether before presenting the case or during its examination before the different degrees of courts, to submit their litigations to individual arbitrators (arbitrators) entrusted to rule over them. Arbitration is therefore, a legal system under which the arbitrator, who does not hold a judge attribute, settles the litigation, for which the parties agree to assign him the function to decide on it.

Why resorting to arbitration
For many reasons, some parties may not like to resort to the judicial courts in order to resolve their litigations:
The first reason: The arbitration would save the time required by the lawsuit, if it is brought before the courts according to complex procedures, which mean the verdict won’t become definite, and thus enforceable unless after passing through many degrees of trial. However, this matter is not absolute in its context: the negotiations paving the way to arbitration may take long time, and then after concluding the arbitration, there is the appeal stage if the issue admits so, or the nullification stage, then the cassation stage after the issuance of the final appeal verdict, which leads to the following conclusion: the time taken since starting the arbitration and until the issuance of the final decision by the Court of Cassation might sometimes exceed the time spent on trial before the State courts.
The second reason: the parties remain free to elect the arbitrator, whose knowledge, experience and impartiality are ascertained to them; particularly whereas to the merits of the lawsuit, especially if it is of a technical and specialized nature.
The third reason is that arbitration may reduce the high expenses fees of the lawsuit that may surpass the fees received by the arbitrator, himself. However, in many cases, arbitration was not less expensive than the recourse to the State courts, as the fees charged by arbitrators, especially in important lawsuits, are very high.
However, the principal advantage of arbitration is that the trial stays away from the limelight, and from the public. The arbitration occurs in a confidential way and no one get acquaintance of it, at least during the early stages and before challenging the arbitration award. The concerned parties find in it a margin of safety that helps them avoiding defamation as well as the complication in relationships and businesses, especially if they were traders.

Characteristics of arbitration
The arbitration is judiciary: the legislator has created this exceptional way, in order to settle litigations, so the task of the arbitrator is completely similar to the judge’s task. The award rendered by the arbitrator, like the verdict issued by the judge, aims to settle a claim submitted to him, by an individual against another one, and based on the rules of law or equity. The law imposes also to justify the award issued by arbitrators, even if they are absolute arbitrators, otherwise the award may be declared null (Article 800/5 Code of Civil Procedure).
The arbitration is a private judicial way: the judicial arbitration does not have the attribute of the public court of justice, which is the Power of the State Justice or Courts; rather it is considered as “a private judiciary” (une justice privée) because the arbitrators are individuals. The law enabled them exceptionally to assume a function belonging in the first place to the State that exercises it by virtue of its public authority. The judicial title does not qualify the arbitrator as a person; he does not acquire it unless in the process of settlement of litigations for which he was chosen.
- The foundation of arbitration is usually a convention: The arbitration, as a private judiciary, derives his basis from the will of the parties, i.e. from their agreement upon it. The Conventional aspect of the arbitration appears in the following: firstly, in the choice of the arbitration tribunal instead of the regular tribunals, secondly, in the trust that the parties show to the person of the arbitrators they choose


Distinction between arbitration and similar procedures
Two individuals (or more) related by a legal relationship, that led to a litigation, might empower a third person to conduct mediation or conciliation or reconciliation or an expertise on the mentioned litigation, or also to empower a third person to provide an element that complements the agreement between them. Should such empowering be considered an arbitration or does it differs from arbitration, and what are the traits of difference between the two concepts?
- The arbitration and the power of attorney given to the third individual in order to determine one of the litigation elements: Parties might agree, within their contract, to assign a third individual to determine, amongst the elements of the contract, an element, they cannot define by themselves because of the inadequacy of their technical understanding for example, or because of their disagreement concerning this matter, and thus they avoid disabling the conclusion of the agreement or exposing it to nullity. Similarly, they may agree, within the frame of a sale contract for example, to assign a third party to determine the price or condition or the type of the goods. It is noticeable that this matter is extremely critical; the qualification of the given mandate depends on the interpretation of the agreement content, based upon the nature of the process and the real intent of the contracting parties (Article 366 obligations and contracts).
However, we can state in general that the task of the third individual is limited to be, not the task of an arbitrator, but the task of an agent for the parties of the agreement, in order to determine an element complementary to the contract.
- Arbitration and expertise: Expertise is, in principle, investigation or instruction procedures assumed by the expert, in accordance with the Articles 313 and following of the Code of Civil Procedure, in order to provide an opinion on the matter or matters before him. It differs from arbitration in that it ends by giving the court a non-binding opinion (321 and 362 CCP) while the arbitration ends when the arbitrator renders an award, which binds the parties, and which acquires the res judicata force (794 CPP). It is noted that, in the case of confusion between arbitration and expertise (especially the amicable one) due to the ambiguity of expressions and terms, the parties included in the terms of their agreement, that the arbitrator assumes the responsibility of providing the correct qualification of the terms of the agreement concluded among the parties. Furthermore, he is entitled according to article 785 CCP, if either litigant party contests the principle or scope of jurisdiction, to settle this litigation, and thus to interpret in such event the arbitration agreement, upon which his mandate was established.
- Arbitration and reconciliation: arbitration is different from reconciliation in the following matters:
* The reconciliation, is an agreement in which the two parties settle the litigation between them or forbid its occurrence upon mutual indulgency (Article 1035 obligations and contracts). As for the arbitration, although it originates from an agreement, it leads to settle the litigation by rendering an award having a judicial nature and therefore, the res judicata force, according to article 794 CCP.
* The reconciliation does not happen unless if either party waives of some of his claims, while arbitration settles the litigation by determining the rights that belong to a party against the other.
* The arbitration award may be challenged by different ways, as prescribed by the law, while the reconciliation agreement which binds the parties may not be challenged by the same methods used for judgments but it may be revoked.
- Arbitration, mediation and conciliation: The conciliation occurs when a third individual, assigned to approach the parties’ points of view, intervene to resolve the litigation and to document the solution in a written agreement, often recorded in the minutes of conciliation. The mediation is close to conciliation; however the role of the third party includes the invention of a solution to the dispute, his proposal to the parties, who still have the freedom to accept or reject it. Confusion occurs between arbitration and all these alternate methods of resolving litigations, particularly when the arbitrator is not bound to apply the legal rules or when he is required to seek reconciliation among adversaries. However, arbitration differs from mediation and conciliation, because the third person is given in arbitration the authority to render an award regarding the claims of the parties, and such award binds them, while the recommendation the mediator gives or the proposed solution from the reconciler does not have a binding force to the litigating parties.

Types of arbitration
The new Code of Civil Procedure provides in its articles 775, 776 and 777 for three types of arbitration:
Regular arbitration: when the adversaries agree that the arbitrator applies the legal rules and the procedures of the regular trial, with the exception of what does not comply with the procedures of arbitration (article 776 / 2 CCP).
- Absolute arbitration: when the adversaries agree to exempt the arbitrator from applying the rules of law, the procedures of the regular trial, and to apply the principles of fairness and justice, provided that the public order rules are excluded from the exemption, especially in terms of the right of defense, and justification of judgments and the respect of the rules related to the regulation of arbitration (article 777 CCP). The absolute Arbitration can only be proven by an express provision in the arbitration agreement or in a separate agreement. Litigants might agree to exempt the arbitrator, from applying the rules of the Code of procedures, provided the arbitrator abides by the legal rules, except for the procedures related to the public order and the principles set forth in the Articles, 365 to 368 CP, and 371 to 374 CP. The litigants usually determine the nature of the arbitration. However, and in case of doubt, or uncertainty, it shall then be considered a regular arbitration, in accordance with the provisions of Article 776 / 1 CP.


The persons having the right to conclude an arbitration agreement
The arbitration agreement is subject to the same objective conditions, governing contracts in general. These conditions concern the consent, capacity, the object and the cause. If one of these presented conditions is impaired, then the agreement shall become null. This nullity would be relative or absolute, depending on the vice it refers to.
1- Physical Persons and the conditions they must meet: Each individual, being a party in the arbitration agreement, must be eighteen years of age and be eligible for commitment. And therefore, neither minors nor do incapable parties, despite exceeding eighteen, admit the arbitration. However, the law considers that the acts concluded by an incapable party, when he is discerning, including the arbitration agreement, shall be relatively null, and the other party may not raise the issue of nullity, but rather this right belongs to the incapable or to his representative. (Article 216 / 2 obligations and contracts). The minor’s tutor - as well as the guardian ??of the insane, the imbecile or the prodigal - is entitled to do administration acts on the properties of the minor or the incapable; however, he cannot undertake disposal acts on these properties unless he is authorized by the court. The arbitration is usually qualified as being an act of disposal, unless it is limited to a litigation related to mere administration. Consequently, if the dispute comprises the administration of the properties of the minor or the incapable, nothing prevents the tutor or the guardian from concluding an arbitration agreement. However, if the litigation is related to the ownership of these properties, then neither the guardian nor the custodian may conclude an arbitration agreement, unless he obtains the court authorization. As for the minor who is duly or legally authorized to practice trade or industry, he will be treated as having reached age of maturity, and thus within the range of his trade and its estimated requirements. So he is allowed to conclude an agreement for arbitration. However, his capacity is not absolute. He cannot agree on an arbitration agreement, unless it concerns litigations related to the trade that he is authorized to exercise. The result depends on the extent of the authorization given to him and which can address all affairs of the trade.
The bankrupt: the judgment declaring bankruptcy leads to depriving the bankrupt from the power of assuming the management and the disposal of his assets in accordance with the article 501 of the code of Commerce. Hence, he looses the eligibility to make an arbitration agreement. As for the arbitration agreement conducted by the debtor before announcing the bankruptcy, it shall remain in force, while the official receiver (syndic) is required to implement it, similarly to all other valid dispositions and agreements, signed by the debtor before his bankruptcy. But the principle of the continuation of the validity of this arbitration agreement becomes subject to consideration, when it is related to or associated with litigations arising from bankruptcy, or that would not have arisen in such a mode if the bankruptcy didn’t occur or that the bankruptcy would have a legal effect upon it.
The mandatory or authorized agent: The arbitration agreement could be concluded by an agent. The legislator has set strict rules, concerning the power of attorney for arbitration, since under article 778/2 of the code of contracts and obligations and the article 381 CCP the arbitration power of attorney should be a private one, whether exclusive for arbitration or comprising other legal acts. And the private power of attorney stipulated for arbitration does not necessarily mean that it relates to a particular litigation, but it can comprise all the litigations related to the principal. It gives the agent the authority to conclude an arbitration agreement accordingly.

2. Moral Persons subject to the private law: A company is entitled to resort to arbitration in order to settle litigations, regarding it, unless the law or its regulation forbids that. This right pertains to its manager, and representatives who have the power to conclude an arbitration agreement, whether the company is a joint-stock or a limited liability company, or a partnership or limited partnership one.

3. Moral Persons subject to the public law. The Code of Civil Procedure, promulgated by the legislative Decree Nº 90/83, did not grant the State or the public persons the right to resort to arbitration. But after amending it, under the law Nº 440 dated 1/8/2002, Article 762, within its second paragraph, granted them this right and that, regardless of the agreement nature. However, the arbitration provision or the arbitration agreement shall not be in force in the administrative agreements, unless after being validated through a decree taken or issued by the Council of Ministers, upon the competent Minister’s proposal, concerning the State or by the tutelage authority for the moral persons of the public law.

Litigations subject to arbitration
Arbitration is originally possible in civil and commercial cases (Article. 762 CCP). But, this principle is subject to the law limitations and exceptions, whereas Article 762 CP stipulates that the arbitration provision is valid only in disputes subject to conciliation. Article 1037 of the code of obligations and contracts states that conciliation is not permissible for matters concerning personal status or public order and also personal rights that are not considered as funds or properties amongst people. Article 1039 adds that conciliation isn’t permissible for the right of alimony. It is evident from the above mentioned texts that the legislator wanted to exclude from the scope of arbitration, certain litigations which the settlement is exclusive to the State courts, due to their high importance, seriousness and major social value, even if they are related to private interests, and we will deal with them successively as follows:
-Personal Status: these actions deals with whatever allows the determination of the legal status of an individual (i.e., age, sex, nationality), or his social status (marriage, divorce, separation) or capacity (discriminating minor, non discriminating adult). Arbitration is not permissible in any litigation concerning any matter of personal status. However, the law put some limitations to this rule, and authorize the arbitration in a litigation that deals with the financial interests arising from a matter relating to personal status, such a litigation for the compensation, due to the engagement termination, for example.
- Personal rights that are not considered as funds or properties among individuals: these include all the rights that accompany the individuality rights: such as the right to physical integrity or safety, the right to the name and the moral right of the author, the customers in the liberal or art professions, and the salaries and wages of the workers and employees, to the extent which does not accept seizure. Such rights cannot be subject to contracts. But nothing prevents submitting the litigation due to breaching any of these rights, to arbitration as being a financial right, part of the patrimony of an individual, and which could be disposed of, and hence may be subject to arbitration.
- The right to food (alimony): According to articles 762 and 765 of the code of Civil Procedure and the article 1039 of the code of obligations and contracts, arbitration is not permissible whereas to a litigation regarding the alimony right, because it responds to the need of its beneficiary, and it is then linked to the individual persona; therefore, the consideration of granting it is acquires the character of public order. However, arbitration is permissible on the manner of fulfilling the due installments or payments.
- Inheritance/Succession rights: There is no way for arbitration whereas to inheritance rights, if the estate has not been yet opened and the succession is not yet due, pursuant to the rule related to public order, and which prevents any contract on a future legacy. But, outside this case, article 1040 CCP allows conciliation and therefore arbitration concerning the litigation related to the acquired legacy rights, provided that the concerned parties are aware of the value of the heritage/estate amount.
- The public order: There are some litigations where arbitration is forbidden, not under special provisions, but for being related to public order and so, whether what the litigations objects relates to is absolute i.e. their rules aim to ensure the respect of the community supreme interests: political, administrative, financial, economic, social interests, or being a relative public order, i.e. their rules aim to secure the respect of private interests, the legislator wanted to protect by mandatory rules.
- Litigations relating to bankruptcy: the law granted the court that declared the bankruptcy an exclusive jurisdiction to consider litigations related to it (Article 490 Commerce). Therefore it is not permissible to resort to arbitration on these litigations, since the issue is related to public order.
- Litigations related to the employment contracts of and the social security: these litigations are divided into two categories:
- individual labor litigation: that arise between the employer and the employee on the application of the labor law provisions, such as dismissal of service and setting the minimum limit of wages. These litigations are subject to the jurisdiction of the Arbitrational Council of Labor, which although has such nomination is considered one of the State courts.
- Collective litigations of labor: The Law of September 2, 1964 which regulates the collective labor agreements provides that their resolution is subject to two methods: mediation and arbitration in accordance with special procedures. It is considered effective upon meeting two conditions: that one party of the litigants is a group of workers/ employees, and it addresses a collective interest.

The arbitration clause
Definition of the arbitration clause
The Lebanese law did not include a definition for the arbitration clause. However we may, based upon the text of the Article 762 conclude that it is the clause, being part of an existing agreement between two parties, regarding a civil or a commercial issue, that aims at discarding the jurisdiction of the regular courts, in ruling over litigations that might arise consequently to the agreement, to subject it to the jurisdiction of one or several arbitrators. The law authorizes as well, the inclusion of the arbitration clause in an independent document to which the original agreement refers. The law requires for the arbitration clause to be valid that it meets certain conditions that we will discuss in subsequent text.

Form of the arbitration clause
The text of Article 763 CP shows that the arbitration provision is not effective and valid unless if it is made in written. Hence, writing it is then the required condition, not only for proving the existence of the arbitration clause, but also for its validity. Therefore, if the writing is not done, the clause shall be considered as never existed. Therefore, it is not permissible to prove its existence by any other means of proofs, not even the decisive oath or acknowledgment. This condition is applied whether the clause is within a civil or a commercial contract, without consideration to the fact that the proof is free in commercial litigations
The content of the arbitration clause
We perceive out of the text of article 763/2 CCP, along with article 764 of the same code, that it is sufficient for the validity of the arbitration clause that it includes the appointment of the arbitrator or arbitrators in person or by their titles or by clarifying the method, through which this appointment shall be achieved. Hence and if a litigation arises between the two parties, whereas to the implementation or the interpretation of the original contract, the arbitration tribunal shall then be established and known or available to be promptly composed, in order to handle the litigation. It is also stipulated that the arbitrator shall be a natural person (Article 768 CCP).
An obstacle might be faced after the litigation has arisen, concerning the appointment of the arbitrator or arbitrators, according to the method provided for by the arbitration clause. Hence, the law decides in this case to resort to judicial courts. Article 764 CCP provides: “If an obstacle occurs after the litigation presentation, whereas to the appointment of the arbitrator, by either litigant parties and upon implementing their appointment methods, then the president of the first instance chamber shall appoint them. The said judge shall consider whether the clause, that the arbitration will rely upon, is clearly void incontestably or whether it is not sufficient to allow him to make the appointment, he will then decide to confirm the voidance and refuses to appoint the arbitrators, in order to avoid the establishment of an arbitral body that can issue only a void award.

The effects of the arbitration clause
The arbitration clause leads to several effects, whether in the relationship between the two parties or whereas concerning regular courts. Said effects are represented in particular by the following: - The binding character of the arbitration clause: the two articles 764 and 778 CCP have treated the case wherein one of the parties refrains from the implementation or sets an obstacle in its course; thus they have given the other party the right to request the appointment of the arbitrator or arbitrators from the President of the court of first instance in order to proceed with the arbitration procedure. Afterwards, the litigation shall be referred before the arbitrator or arbitrators, despite the reluctance of the other party. It is known that the arbitration clause is not enforceable against the others, pursuant to the rule of the relative effect of the contract (article 225 of the code of obligations and contracts). However, this rule is not absolute and yet it is possible to deviate from it in the following two cases:
a) Cession of the arbitration clause: It is noted that should the contract containing an arbitration clause be alienated, such alienation should include also that relevant arbitration clause. The clause is not considered independent from the contract in such case.
Furthermore, and if the arbitration clause exist in the contract or regulation of the company, and if there is a share in the company alienated to a third party, then this arbitration clause will apply to the assignee, even if he does not have the eligibility and capacity to conduct arbitration.
b) The contract containing a stipulation for the benefit of others, as well as an arbitration clause: If the original contract contains at the same time an arbitration clause and a stipulation for the benefit of others, the beneficiary third person becomes directly, after accepting it, a creditor of the engaged or promising party, but this stipulation has been done through the other stipulating contracting party who wanted to make the third party benefit from it in return of his commitment within this agreement, including the arbitration clause. The third party may no longer benefit from the stipulation mentioned in the contract and related to the obligations contained therein, without taking into account these commitments, including the arbitration clause.
- Discarding the jurisdiction of the regular courts: the Code of civil procedures did not include an express text, whereas to this effect, but the spirit of the legislation and the general principles related to contractual freedom and the binding force of contracts lead to such conclusion, whereas it is required under Article 785 CCP to reserve jurisdiction to the arbitrator in order to settle the questions about the extent of his competence.
The plea of lack of jurisdiction, resulting from the arbitration agreement, has a relative aspect, and must be presented at the beginning of the trial and before discussing the substance. However the jurisdiction of the regular courts of justice shall not entirely disappear, with the availability of an arbitration clause, whereas the judge of urgent cases shall still have the power to take all conservatory and temporary measures as required by the urgent procedures.

The arbitration contract
Article 765 CCP defines the arbitration contract as "a contract whereby the parties agree to resolve a litigation susceptible of reconciliation by arbitration done by one or more individuals." The arbitration contract or agreement, alike the arbitration clause, aims at removing the litigation from the jurisdiction of regular courts, to be handled by the arbitrators. However, the arbitration agreement remains different from the arbitration clause, because the first one relates to an arising litigation, while the second one relates to a litigation that might arise at a later stage, during the execution or the interpretation of the original contract.
The form of the arbitration contract: Article 766/1 CCP states that " the arbitration contract may not be proved unless if made in written". Based upon this text, it is obvious that the legislator has stipulated the written form in order to prove the arbitration contract, to the contrary of the arbitration clause. Consequently, the existence of an arbitration contract can be proved between the two litigating parties, through the decisive oath or acknowledgment.
Content of the arbitration contract: Article 766/2 CCP stipulates that the arbitration contract, in addition to containing the same information of the arbitration clause, must indicate the litigation object, in order to determine precisely and accurately the arbitrators’ jurisdiction scope, otherwise it will be considered null. This matter is considered very important because it enables the court, before which the nullification claim of the arbitration award is submitted, to monitor the extent of compliance of the arbitrators with the limits assigned to them.
The effects of the arbitration contract: Signing the arbitration contract produces effects similar to those produced by the signing of the arbitration clause. However, it also leads to the interruption of the prescription on the litigated or contested rights. In case where the litigation has become the subject matter of some proceedings before courts, the arbitration conducted at a later stage, will then interrupt the trial delays, as such the elapse delay, the delay of challenging the rendered judgment as the appeal delay. The interruption remains effective, throughout the arbitration proceedings, until the issuance of the relevant award or its termination for whatsoever other motive.

The arbitral Tribunal
The two parties may agree, within the arbitration contract, on appointing one or several arbitrators, constituting the arbitral tribunal. They usually consent on the time period, during which the arbitrator must do the mission he is entrusted with. Incidents and unexpected issues might occur, to terminate the task of the arbitrator, before the arbitration delay expiry. Accordingly, we will consider the following: Individuals, who may be appointed as arbitrators and the conditions they should meet, the arbitration delay; cases wherein arbitration is terminated before the arbitration delay expires.

Individuals who may be appointed as arbitrators
Article 768 CCP provides that the arbitrator must be a physical person, which means that the legislator wanted to emphasize the confidence that should exist between the parties and the arbitrator. However, this fact does not forbid entrusting a moral person for organizing the arbitration, in accordance with the provisions of article 772 CCP. The Lebanese law does not include any stipulation, with respect to the nationality of the arbitrator; hence, the arbitrator may be a foreigner. An arbitrator is required to be legally capable, meaning that according to article 768 CCP, he may not be a minor/ under age, interdicted or deprived of his civil rights or bankrupt, unless if he is rehabilitated. This is due to the fact that the arbitrator plays a significant role of a judicial nature. If there are several arbitrators, their number must be odd, i.e. single under the penalty of invalidity of the arbitration as provided for, by Article 771 CCP. If the litigants appointed an even number of arbitrators, then another arbitrator must be added to them in order to make their number odd. This is due to the fact that the even number prevents rendering the award, when the votes are even; the third arbitrator is added according to the agreement of the parties or else by the consent of the appointed arbitrators. When the organization of the arbitration is undertaken by a legal or moral person, it will appoint one or two arbitrators to be accepted by all the litigants. If such consent isn’t possible, the organizer of the arbitration asks each litigant to appoint one arbitrator, and he nominates the third arbitrator; when the litigants do not appoint an arbitrator, the organizer of the arbitration undertakes this appointment.
The arbitration Delay
Determining the arbitration delay
The two parties determine the arbitration delay within the arbitration contract. These two have the full liberty in determining the term of the delay. However, Arbitrators should be granted sufficient time to study the case and deliberate accordingly, in order to prepare the relevant award. If the two parties did not specify the arbitration delay, the arbitrators are then required to accomplish their mission within six months at most, as of the date the last arbitrator accepted his mission, since acceptance is a prerequisite for the completion of the arbitration agreement and for enabling the arbitrators to start effectively the arbitration proceedings. The acceptance might be express, as well as tacit, resulting of the arbitrator initiating his mission fulfillment. The law requires, in all cases, the acceptance to be proved in written (article 769 first paragraph).
Suspension and interruption of the arbitration delay
The reasons that lead to the suspension and interruption of the arbitration delay are all the same leading to the suspension and interruption of the trial before the courts.
- The Delay suspension: the reasons for the suspension of the arbitration delay may include the following:
* Request to challenge or reject the arbitrator: When either party requests to challenge the arbitrator, the arbitration delay is suspended from the date of the notification of the request to the arbitrator until its settlement in accordance with article 125 CCP concerning challenging the judge. The request is submitted to the First Instance Chamber, within its geographical scope the arbitration center is located, or otherwise, the First Instance Chamber in Beirut (article 770 CCP).
* The challenge of an award rendered by the arbitrator that has resolved one point of the litigation points: whether challenging occurs through appeal or nullification, because the arbitrator must then cease pursuing the arbitration until the Court decides upon the challenge and notifies him her decision.
* Objecting issues and the claim of falsification: Articles 783 and 784 CCP have specified two cases for suspending the arbitration delay and that upon claiming a civil falsification and presenting objection issues for which he has no competence, and whose solution is necessary for the issuance of the final award of arbitration. (From which we mention: matters of administrative or diplomatic nature or issues related to the personal status ...).
- The interruption of the delay: Pursuant to article 782 CCP, the arbitration delay is interrupted, for the reasons specified in article 505 CCP, which include: the decease of either party in the lawsuits transferable, when the concerned party looses his capacity to litigate, when the person representing a party looses his quality in the action as a legal representative. The interruption of the delay becomes definitely effective, as soon as its reasons are notified to the second party (Article 505 CCP, last paragraph). The delay will not run again until the resumption of the trial, which is achieved either by notifying the party standing for the party who passed away or lost his capacity to litigate, or standing for the party who lost his quality, upon the request (of the others), or also by attending the hearings and by continuing the trial by the successor of the deceased party or by the party who stands for the incompetent or the one who lost his quality as a legal representative (article 508 CCP).

Extension of the arbitration delay
The delay specified either in the contract or by the law can be extended, either by the agreement of the parties or by the decision of the president of the First Instance Chamber, upon the request of the litigants or the arbitral tribunal (Article 773, paragraph 2 CCP). The President of the Chamber, to whom the extension request is submitted shall be, in accordance with the articles 774/ 1 and 770/2 CCP, the President of the First Instance Chamber within its scope of jurisdiction is located the chosen arbitration center. If such agreement on the arbitration center does not exist, then the President of the First Instance Chamber in Beirut shall then assume the said function. Submitting the request shall not be permissible, if it occurs after the expiry of the original delay. Hence, and accordingly a new arbitration contract is required, in order to revive the jurisdiction of the arbitrators, because their authority is restricted in this case. The extension might be explicit or implicit deduced from any positive attitude taken by the two parties or their attorneys, and it proves definitely their will to such extension. In the case where an arbitration delay is determined by the agreement of the parties, the extension of the delay shall be hence for a new period similar to that of the agreement, if the two parties have agreed so. If it became evident that there is no limitation for the extension period, the legal delay is to be applied. It appears from the text of article 773 / 2 CCP that the arbitrators may not extend the delay by themselves; however they can ask for a delay extension.
The effects that result from the expiration of the arbitration delay
The existence of the arbitration delay, binds the arbitrators to settle the litigation submitted before them within its limits. When this delay expires, the arbitrators lose their judicial authority and consequently the arbitration trial gets terminated. However, the arbitration clause, when being the source of arbitration, remains in force binding the litigants, to refer to and to implement. The legislator has expressly stipulated that if no arbitration award is rendered within the agreed upon delay, then the consequence is the nullification, in accordance with the provisions of article 800 CCP.
The cases of terminating the arbitrators’ mission before the expiration of the arbitration delay
For instances other than when the arbitrators’ mission is terminated because of the expiry of the arbitration delay, arbitration can be terminated because of the impossibility to continue arbitration as it is decided in the arbitration agreement. Article 781 has identified many cases as follows:
- The arbitration trial shall terminate upon the death of the arbitrator, unless there is a different agreement regarding this matter. And if the arbitrator dies before accepting the mission entrusted to him, then this would constitute an obstacle for forming the arbitration tribunal and would open room to apply article 764, previously explained.
- The existence of a reason preventing the arbitrator from assuming his mission or depriving him from using his civil rights: It is meant by the mentioned reason every physical or legal impediment, which prevents the arbitrators from judging in the litigation submitted before him (such as illness, the loss of civil capacity incurred during the arbitration trial).
- The dismissal of the arbitrator: in order for the dismissal to be true and complete, it must be issued with the consent of the two parties, as provided in the article 770 CCP, with no distinction between the authorities that had appointed the arbitrator. The authority to dismiss is discretionary, it may be based upon incorrect causes and considerations, but nonetheless it produces its effects. The dismissal may be explicit or implicit occurring from the agreement of the two parties on the appointment of another arbitrator before whom they submit the same litigation for resolution.
- The abstention of the arbitrator to perform his mission: We have already seen that the arbitrator, once appointed, can reject the mission entrusted to him; this leads to the demise of the arbitration agreement (766 / 15:00. CCP) However after accepting the mission, he is not permitted to abstain from performing it unless if it is for a serious motive, otherwise he may be sentenced to compensate the injured party. The serious motives that justify the challenge of the arbitrator are the same motives as for the judge (article 770 and article 120 CCP).
- Challenging or rejecting the arbitrator: Challenging the arbitrator is initially an attitude taken by the litigant, according to the prescribed procedures for such purpose, to refuse for a legitimate motive, the involvement of a judge in the formation of the competent court in settling a lawsuit. The Law specified the motives upon which the rejection is set up in the article 120 exclusively so as not to accept the rejection request unless if it is assigned to one of these reasons. The rules of the judge’s rejection and its motives are applied on the arbitrator’s rejection (article 770 / 1 and article 128 / 1CCP).
It is not permissible to reject the arbitrator unless for causes that occur or appear after their appointment under the article 770 CCP because both parties upon their agreement on the persona of the arbitrator and knowing his real condition, are considered to renounce the mentioned cause. If a reason for rejection occurs for the person of the arbitrator, he must once appointed uncover it to the two parties in order to enable them to take the appropriate position in its concern. The rejection request must be submitted within five days from the date the requester of the rejection was informed about the appointment of the arbitrator or from the date on which the cause of the rejection emerged, to the First Instance Chamber within which is located the specific arbitration center designated in this agreement for the organization of the arbitration.

The arbitration trial
The Lebanese legislator has set the rules of arbitration in Article (778) and its subsequents of the Code of Civil Procedure (CCP) and has imposed that arbitration remain governed by trial fundamental principles under provisions of Articles (776) and (777) of the Code of Civil Procedure, whether arbitration, to which both parties accepted to resort, was ordinary or absolute, despite the fact that he has endowed each type by certain type of procedures.
Difference of arbitrator authorities extents according to arbitration type
Ordinary arbitrator authority
The ordinary arbitrator settles the litigation filed thereto, according to rules and procedures of ordinary trial, with the exception of what is inconsistent thereof with arbitration procedures (Article 776/2 CCP). In terms of trial procedures rules, same procedures applied at the Court of First Instance will be implemented herein, including in particular rules related to evidentiary testimony of witnesses, Article (266/CCP), expertise Article (313/CCP), implementation of writing, Articles (174 to 178/CCP) and Article (783/CCP), time limits Articles (420 & 421/ CCP), as well as all rules pertaining to exchanging pleas and presenting documents. However, by exemption, rules related to subpoenas are not applied Article (442/CCP), notification Article (398/CCP), and trial crimes Articles (493 & 497/CCP). As for the applicable law on basis of litigation, the arbitrator ought to implementing “law of positivism” with all its rules as to what ordinary courts do.

Fundamental principles
There are some principles that the arbitrator should adhere to, regardless of arbitration type; some of which the text that has explicitly stated the following: such as principles related to Public Order and fundamental principles of the trial as the principle of “in presence”, respect the “right to defense” and “verdict justification”, Articles (776 & 777/CCP), and adherence to the scope of litigation, Articles (365 to 368/CCP). Some of which are those derived from principles or general rules of the law: such as the arbitrator authority to interpret law, interpretation of international treaties, and his commitment to comply with description or legal merits determined by both parties. He has to raise pure legal grounds voluntarily. In case the arbitrator violates any of these principles, the result will be nullification of this decision, whether for exceeding the limits of his mission pursuant to provisions of Article (800/CCP) or for not taking into consideration the rights to defense pursuant to provisions of Article (800/4/CCP).
Difference of arbitrator authorities extents
The ordinary arbitrator settles the litigation filed thereto, according to rules and procedures of ordinary trial, with the exception of what is inconsistent thereof with arbitration procedures (Article 776/2 CCP). In terms of trial procedures rules, same procedures applied at the Court of First Instance will be implemented herein, including in particular rules related to evidentiary testimony of witnesses, Article (266/CCP), expertise Article (313/CCP), implementation of writing, Articles (174 to 178/CCP) and Article (783/CCP), time limits Articles (420 & 421/ CCP), as well as all rules pertaining to exchanging pleas and presenting documents. However, by exemption, rules related to subpoenas are not applied Article (442/CCP), notification Article (398/CCP), and trial crimes Articles (493 & 497/CCP). As for the applicable law on basis of litigation, the arbitrator ought to implementing “law of positivism” with all its rules as to what ordinary courts do. The absolute arbitrator authority to settle litigation: Article (777/CCP) states that “in absolute arbitration, the arbitrator is exempted from implementing law rules and ordinary trial procedures. They render a judgment under the principle of equity”. The second paragraph adds: “to be excluded from such exemption, law rules pertaining to Public Order and fundamental principles of trial procedures; especially those related to the “right to defense”, “verdict justification”, and “arbitration rules”. The fact that “absolute arbitration” deviates from law rules, both parties shall unveil their will related to that regard, and agree thereupon explicitly, pursuant to Article (777/3/CCP). Justice in equity is nothing but a faculty (faculté) determined for the arbitrator. He may therefore consider that equity, by itself, stands by the implementation of the same law rules.

Manner of trial management
The arbitrator assumes the management and the investigation at the trial. He enjoys the same authority given to the judge in this regard; he may therefore order to conduct any investigation authorized by law in order to complete the pretexts of the litigants as evidences, Article (135/CCP). He may also request from the litigants clarifications concerning facts or legal points that he deems requisite for the ruling on the litigation, Article (371/CCP). Moreover and as necessary, to assume any investigative measures, he must therefore issue an order for such measure, even without the knowledge of any of the litigants, Article (374/CCP). However, in this case, and pursuant to the “in presence” principle, the arbitrator should inform the concerned litigant of the investigation input (occurring through expertise method) so that he will have the chance to discuss it before the arbitrator. It is also up to the arbitrator to seek reconciliation between both parties pursuant to Article (375CCP) without being obliged to do so.
Rules and procedures of the trial
After demonstrating the extent of authorities given to the arbitrators to settle the litigation, as well as the fundamental principles that govern the trial, examining closely the trial itself shall take place. Are treated below the location where the trial is taking place, the method with which the litigation was filed before the arbitrators, the litigants in the trial and the way they are represented, and the issue of intervention by third parties in the trial. Then are examined the procedures of this trial, its conduction rules, presenting pleas, memorandums, and documents, and the investigation required by the facts of litigation, statement of available evidences to prove it and up to the conclusion of the trial.

The“arbitration location” depends initially on the stance of both parties, whether in the arbitration clause or in a subsequent agreement. If there is a legal individual or an arbitration institution appointed by both parties for the organization of arbitration, it is therefore normal that the location of this individual or this institution is where arbitration will take place. This selection has practical importance since it is where procedures are concluded and the final award is rendered. Accordingly, is appointed the competent Trial Chamber or its President that has the jurisdiction to review and settle all issues that the law authorizes him to consider.

“Filing the litigation to the arbitrators”: Litigation is brought before the arbitrator(s) by the involved litigants or by the most impetuous one amongst them in accordance with Article (778/CCP). It is therefore compulsory to draft an instrument in which the litigation subject is detailed and defined and then the limits of the arbitrator’s task, after which no serious litigation would arise in this concern. It will be appropriate to include attendees during the trial on a certain date.

“Representation of litigants in the trial”: It is necessary to distinguish in this regard between “ordinary arbitration” and “absolute arbitration”. In “ordinary arbitration”,we shall use the mandatory rule provided for in Article (378/CCP) which imposes on the litigants (parties of arbitration agreement in this case) to seek assistance of a lawyer as an attorney in cases of undetermined value, or those which exceed the alleged value to be one million Lebanese pounds. As for “absolute arbitration” where litigants are exempted from implementing rules of ordinary trial procedures; therefore, they will have the option not to be represented by an attorney.

“Intervention in arbitration”: Arbitration agreement upon which is based resorting to arbitration is in its essence a contract binding only the parties who signed it. Therefore and as per the principle, it is reasonable to mention the necessity not to allow intervention and intrusion in arbitration. Article (786/CCP) stated, in this regard, that no third parties are allowed to intervene in the litigation before arbitrators unless litigants agree thereon. As for intrusion, the consent of litigants is not sufficient, rather the party requested to be intervened shall approve thereof.

The case differs during the challenge phase of the final award either by appeal, or by way of voidance; so that intervention and intrusion will be possible in accordance with public procedures implemented on trials before courts.

“Proceedings of arbitration”: After raising the litigation before the arbitrator according to the previously described conditions, he must proceed therefore with arbitration proceedings. The Code of procedures incorporated some scripts in this regard.

“Presenting documents and notification thereof by litigants”: If litigation has been submitted to the arbitrator under an arbitration contract in which the two litigants have revealed their demands, reasons or arguments, and declared their contentedness, the arbitrator shall therefore only render his award in the litigation within a specified period. However, if the litigants did not reveal all their motives in the arbitration contract, or if the litigation has been submitted to the arbitrator under a request addressed thereto by only one of the litigants based on a previous arbitration clause, the arbitrator therefore proceeds with appointing a hearing session to which he calls the two litigants and where each one of them presents his pleas and documents, when appropriate. All these submitted papers must be served to the other litigant through the method determined by the arbitrator which ensures that it took place. Notification is not served in the determined manner to notify judicial trial, since the arbitrator has not at his disposal judicial assistants. If notification has not been served according to the determined conditions, it does not lead but to invalidity of the final award. Whilst in case it is proved that the litigant at the appropriate time has previewed the mentioned documents or even has the chance to preview them.

“Conclusion of trial”: The arbitrator(s) shall schedule the date on which the lawsuit is considered under scrutiny or debate in preparation for the issuance of the decision thereon. The trial conclusion date is the maximum date beyond which no plea or document can be submitted. This date should be prior to the expiration of arbitration period. The arbitrator must not undertake the conclusion of the trial but after reasonably concluding the investigation.

“Investigation in the lawsuit”: It is represented by the overall procedures which aim to provide the arbitrators with various confirmation elements which assist in the formation of their convictions. In principle, the rules stated in law shall be applied on the ordinary arbitration concerning the investigation in lawsuits before ordinary courts.

These rules are adopted on the process of admissibility of evidence acceptance in order to prove facts and legal tasks upon which were founded the demands of both litigants such as: written proof, witnesses, evidences and other proofs. The law entrusted the arbitrator with the authority to verify the validity of a hand written document or signature through comparing it with other documents pursuant to Articles (174 to 178/CCP). He may also hear the witnesses without having them take the legal oath. However, he has no authority to force them to do so. If they failed to attend or abstained from answering his questions, he refers therefore to the Court President who is competent to examine the litigation in the absence of arbitration for sentencing them by the prescribed sanctions by law in accordance with provisions of Article (779/3/CCP), as well as for the judicial delegations, Article (779/3/CCP), in order to obtain the testimony of witnesses residing in remote areas. In case of multiple arbitrators, they are all involved in the investigation unless arbitration contract allow the delegation of one of them for such purpose, Article (779/1/CCP).

Arbitration Award
Arbitration is concluded with the issuance of the final award that settles all legal points raised by the litigants before the arbitrator. This award is judicial as it approaches through its form, subject matter and effects to the judgments rendered by ordinary courts.
“Conditions of award validity”: After that the arbitrators schedule the date of the trial, they proceed with the deliberation (in case there were numerous) with each other secretly, in order to prepare for the issuance of the final award unanimously or by majority (Article 788/CCP). The confidentiality of deliberation is a guarantee for the independence of arbitrators in providing the views and issuing the award. The lack of deliberation entails the voidance of the award. The law also imposes on the arbitrators to sign the award. The abstention of the minority amongst them to sign does not affect either on the issuance or the validity of the award, provided that the tenor refer to such.
“Statements of the award”: Article 790/CCP states that the award must include the following statements:
1. Name of the arbitrator or names of arbitrators who issued it;
2. Names, titles, and attributes of the litigants and names of their attorneys;
3. Place and date of its issuance;
4. Summary of the statements of the litigants as facts, requests and evidences supporting thereof;
5. Award motives and its judgment clause.
Furthermore, the obligation to mention the date of its issuance under penalty of declaring its nullity pursuant to provisions of Article 800/5/CCP.
“Implications resulting from issuance of the award”: The arbitral award is characterized, since its issuance, by the authority of the rendered judgment in relation to the settled litigation. Upon its issuance, the lawsuit is no longer under the arbitrator authority. He cannot therefore render any new award with regard to the same litigation, nor modify the award that he has issued, even if it included voiding faults, in order to remove invalidity. However, he keeps the right to interpret the award, correct any unintentional omissions or inaccuracies and to supplement it, in case he neglected the settlement of requests, but only within the period determined for him to settle the litigation. In this regard, provisions of Articles 560 to 563/CCP are applied. After the mentioned time limit, the court of jurisdiction will be responsible for the interpretation or correction of the award, if arbitration does not exist pursuant to Article 792/CCP.

Enforceability
The arbitral award is not enforceable unless it is given the executive form. It is requisite for such purpose to deposit the original award before the trial chamber registrar where the center of arbitration is located, by one of the arbitrators or by the most impetuous litigant; a copy of the arbitration agreement will be attached to the original award, certified of being in conformity with its original. The president of the chamber will give therefore an order on a petition to give the award the formality of enforceability, after reviewing the arbitration award and the arbitration agreement.
Failure to present this latter is considered as a reason to rejecting the request of granting enforceability in form pursuant to provisions of Articles 793 and 795/1/CCP. However, if the litigation pertains to the jurisdiction of administrative judiciary, enforceability will be given by the President of the State Council. In the case of refusal, objection to his award will take place before the Council of cases in accordance with provisions of Article 795/2/CCP. “Deposit” is not subject to a certain period; it can therefore take place throughout the period during which it is permissible to request execution of the award, viz. the regular time lap period of ten (10) years.
The law did not impose the justification of the order deciding enforceability. However, under Article 796/CCP, the decision, which rejects enforceability of an award, shall include the statement of motives, which must fall under one of the voidance motives provided for in Article 800/CCP. The role of the judge, competent to provide enforceability, is limited. He may reject it in case the arbitration award is not distinguished by the required prerequisites or if it violates Public Order or even the arbitration clause.
The rendered decision related to granting enforceability does not accept any challenge; but appealing the arbitration award or challenging its voidance, means, within the litigation held before the Court of Appeal, challenging the executive form or transferring the jurisdiction over the case to the competent judge, through issuing thereof, pursuant provisions of Article 805/CCP. As for the decision rejecting the provision of executive form, it accepts appeal, pursuant to Article 806/CCP, within thirty (30) days as of the date of notification.
In case of appealing the arbitration award or challenging its voidance, the President of the Court of Appeal, to which the challenge is submitted, may grant the executive form to the award if it enables immediate execution. The Court of Appeal may decide immediate execution under the circumstances and conditions prescribed in Article 575/CCP i.e. upon the request of one of the litigants, if the immediate execution was mandatory and was not requested from the arbitrator, or if this latter neglected its issuance in accordance with provisions of Article 797/2/CCP. However, if appeal or challenge was rejected with regard to nullification, partially or totally, this would provide enforceability to the arbitral award or to its clauses which are not covered by revocation or voidance pursuant to provisions of Article 807/CCP.

Award Immediate Execution
Arbitration award will be executed according to the rules under which immediate execution of judicial sentences is carried out. The litigant ought to inform his opponent of the enforceable arbitral award. After thirty (30) days fixed for its challenge and held for execution of arbitral award not associated with the summary execution and without any challenge, the arbitral award acquires the authority of the sentenced lawsuit due to its ratification; thus becomes enforceable. Article 803/CCP states that if the arbitral award is not immediately executable, the delay of each of appeal and challenge through voidance stops the execution, also any challenge submitted within the delay stops the execution. However if the arbitral award is immediately executable and has acquired the executive form, it becomes therefore enforceable even if it was challenged. The Court of Appeal may, pursuant to the general rules, and in particular Article 577/CCP, stop the execution of the arbitral award if it appears evident that the consequences of execution exceeds reasonable limits, given the circumstances of each case, or if the reasons for challenging the award will lead most probably to the revocation of the challenged award.
Award Challenge
Article 798/CCP stipulates that the award accepts no objection, but accepts objection of third parties before the competent court to review the lawsuit in case of absence of arbitration. As for methods of challenge that may be presented against the arbitration award are as follows: appeal, voidance and retrial.
“Appeal”: The arbitral award accepts no appeal, under provisions of Article 799/CCP, if litigants have renounced it in the arbitration agreement, or if it was an absolute arbitration where parties did not expressly preserve the right of appeal in the arbitration agreement; which practically means:
a. If arbitration was ordinary, the appeal is acceptable unless litigants have renounced it in the arbitration agreement;
b. If arbitration was absolute, the appeal is unacceptable unless litigants have expressly preserved the right of resorting to it in the arbitration agreement. In this case, the Court of Appeal considers the lawsuit as an absolute arbitrator and applies, on the appeal, ordinary procedures for the appeal of the awards. However, if arbitration was absolute, the Court of Appeal considers the lawsuit as an absolute arbitrator and applies therefore the rules of equity and justice.
The delay to request an appeal is fixed to thirty (30) days valid as of the date of notification of the enforceable award. The decision rendered by the Court of Appeal accepts cassation and challenge according to the general rules pursuant to Article 804/CCP. Appeal will be permissible as of the issuance of the challenged award and before any of the litigants proceed with requesting the executive form.
“Challenge by nullification”: Challenge by nullification is exclusive for arbitration, and falls within the jurisdiction of the Court of Appeal and remains possible within thirty (30) days as of the date of notification of the enforceable award. The decision issued for this challenge accepts objection and challenge in accordance with general rules. It is noteworthy to mention that appeal and challenge through nullification are submitted pursuant to Article 802/CCP to the Court of Appeal within which the arbitral award is rendered. As for the reasons where challenge through nullification is valid, they are enumerated in a limitative way in Article 800/CCP, namely:
1. Issuance of award without an arbitral agreement or pursuant to an invalid agreement or canceled due to expiration of delay;
2. Issuance of award by arbitrators not appointed according to law;
3. In cases where the award exceeds the limits of the mission assigned to the arbitrator;
4. Issuance of award without taking into account the right to defense of the litigants;
5. In cases where the award does not include all the mandatory statements;
6. Breaching public order.
The Court shall not, in nullification justice, monitor the exactness or incorrectness of the solutions; since such cases falls within the jurisdiction of the Court examining the challenge throughout the appeal of arbitral award and not throughout its nullification. If the Court nullifies the arbitral award, it examines the case within the limits of the mission assigned to the arbitrator; unless the litigants consent on the contrary pursuant to Article 801/CCP.
“Retrial”: The challenge by retrial is acceptable in terms of arbitral award in accordance with provisions of Article 808/CCP for the motives and conditions designated for challenge of the awards in this method. The said challenge is submitted to the Court of Appeal in which scope the arbitral award was rendered; the award issued thereby may be challenged by cassation and by objection of third parties.

NEWS & ACTIVITIES

افتتاح الموقع الالكتروني الجديد لوزارة العدل

02 June 2017

 

Read More

طلب وزير العدل إجراء التعقبات

29 March 2017

 حضرة مديرة الوكالة الوطنية للإعلام السيدة لور سليمان المحترمة المكتب الإعلامي لوزير العدل عملاً بالمادة ...

Read More