Concept of International Arbitration
Arbitration is considered international in the concept of Article 809/CCP when related to the interests of international trade. The legislature provided the state and the public legal individuals with the right to resort to international arbitration. The Lebanese judiciary adopted the conclusions of the French judiciary in determining the nature of international arbitration, which can be derived from the fact that the economic process examined by arbitration realizes transfer of funds or of services from one country to another, transfer of capitals, or transfer of technology and exchange of officials.
Arbitrator(s) is/are appointed by virtue of the arbitration agreement, either directly or by reference to the order of arbitration. The agreement may include the method of appointing arbitrators. In case of encountering difficulties in appointing arbitrators in arbitration taking place in Lebanon, or in which adopted Lebanese Code of Procedure was adopted, the impetuous party may request appointment by a decision rendered by the President of the Chamber of first instance, in accordance with the stipulations of Article 810/CCP. As for the procedures, that will be used in arbitration, they will be determined in accordance with Article 811/CCP, in the arbitration agreement. This litigation may be subject to a certain law that will be specified in the agreement. In case of absence of provisions in the agreement, the arbitrator shall apply therefore the procedures he deems appropriate, whether directly or by resorting to a particular law or to the arbitration order. The arbitrator settles in the litigation in accordance with legal rules chosen by litigants or otherwise according to the rules he deems appropriate. He recognizes, in all cases, the commercial customs prevailed for implementation, particularly in cases of absolute arbitration. If the international arbitration is subject to the Lebanese law, internal arbitral rules are not applied, unless in case of absence of agreements, pursuant to provisions of Article 812/CCP.
Recognizing Arbitral Awards
It is sufficient to recognize arbitral awards rendered within the scope of international arbitration, in accordance with Article 814/CCP, if the individual, who is taking it as a pretext, proves their existence and if they were not violating evidently the international public order. It shall be proven by presenting the original arbitral award attached to the arbitral agreement, or by presenting a true copy of these two instruments certified by the arbitrators or by any competent authority, provided that they are translated by a Certified Public Translator if drawn in a foreign language. It is necessary, in this regard, to provide an overview of the concept of the international public order which the international arbitral award shall not violate. It is known that the internal public order rules are applied on the Lebanese territories noting that their effect is not extended to international relations. However, some rules related to public order have important nature used in a large number of countries, which make it international. Therefore, they are known as international public rules which will be binding in terms of application in the field of international arbitration so as every violating stipulation will be excluded.
Challenge means of Arbitral Awards
Arbitral award rendered abroad or by international arbitration, accepts no appeal. It is only permissible to appeal the decision rejecting recognition of a foreign or international arbitral decision or the decision refusing giving it the executable form in accordance with Article 816/CCP. Moreover, international arbitral awards may not be challenged if rendered outside Lebanon directly.
“Nullification”: Article 819/CCP states that the arbitral award issued in Lebanon accepts appeal by nullification. This means that the international arbitral award issued abroad is not subject to the mentioned method of challenge. Therefore, the affected parties have no other choice than to resort to appeal the decision providing it with the executive form in accordance with provisions of Article 817/CCP.
Appeal of the award that is provided with executive form or being provided with the recognition of international arbitral award issued abroad, is not absolute, but is limited to the five cases provided for in Article 817/CCP, namely:
- Issuance of award without an arbitral agreement or pursuant to an invalid agreement or canceled due to expiration of delay;
- Issuance of award by arbitrators not appointed according to law;
- In cases where the award exceeds the limits of the mission assigned to the arbitrator;
- Issuance of award without taking into account the right to defense of the litigants;
- In cases where the award violates the rule related to international public order.
It is noteworthy to mention that not determining the date of deliberation is not mentioned amongst the cases of appeal enumerated exclusively in Article 817/CCP. If the law applied on litigation allows the non-justification of the award, this lack of justification does not violate the international public order but in case this lack of justification would lessen the rights to defense.
As for the delay of appeal based on Articles 816 and 817/CCP, it is thirty (30) days as of the date of notifying the preliminary award that grants or rejects the provision of executive form.
If the international arbitral award was issued in Lebanon, it accepts challenge by nullification for the same reasons provided for in the said Article 817/CCP. However, the award stating the provision of executive form accepts no appeal pursuant to Article 819/CCP.
The delay of challenge, as well as the challenge itself, stops the execution of the arbitral award, unless the award is immediately executable.