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Arbitration under the Lebanese Law

Arbitration

under

The Lebanese Law

Preface

     This is a book dealing with arbitration under the Lebanese Law provided for the law students enrolling in a course entitled “Arbitration” at the Lebanese University, Faculty of Law, and Political and Administrative Sciences.  The course is given in the fifth semester at the Licentiate level.

     The materials provided in this book are corresponding to the latest developments of the Lebanese Arbitration Law.  They satisfy the need of law students at this level.  They are precise, well written and well cross-referenced with the articles of arbitration law contained in the Lebanese Code of Civil Procedures and with other relevant articles contained in other Lebanese codes.

     The book is divided into seven chapters.  Chapter one is entitled “introductory topics on arbitration” deals with the definition of arbitration, historical development of arbitration, its various types, its comparison with other methods of alternative dispute resolution (ADR).  Chapter two deals with the sources of the law of arbitration.  Chapter three deals with domain of arbitration.  Chapter four deals with the agreement of arbitration.  Chapter five deals with the arbitral tribunal.  Chapter six deals with the arbitral proceedings.  And chapter seven deals with the arbitral award.

            

Chapter One

Introductory Topics on Arbitration

     “Alternative Dispute Resolution” (ADR) is a general term used to describe a variety of methods, processes or techniques utilized by parties to disputes to resolve and settle their disputes outside the state judiciary system (the state court ).  Generally, ADR is a system of conflict resolution that embodies a numerous methods, processes or techniques, however, the most known and familiar methods are mediation, conciliation, and arbitration.  Of all these methods, we are going to study arbitration.

     In the following sections we will deal with the definition of arbitration, its historical development, its various types, and the comparison between arbitration and other methods of ADR.

Section one:  Definition of Arbitration

     Linguistically, the word “arbitration” comes from the verb “arbitrate.  To arbitrate means to act as arbitrator or to submit or refer differences for decision to an arbitrator.  An arbitrator is the one that arbitrate.  Arbitration is the action of arbitrator; it is the hearing and determining of a case in controversy by an arbitrator.[1]   Black’s Law dictionary defines arbitration as “the reference of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing at which both parties have an opportunity to be heard”.[2]  

     Juridically, there is no unified definition for arbitration, however all definitions agree on the common components which constitute arbitration.                                  First, it is a process for dispute resolution by a third party or parties called arbitrator or arbitrators outside the state court system.  Second, the parties to a dispute enjoy a full freedom and autonomy to appoint the arbitrator or arbitrators and designate the law of arbitral procedures and the law to be applied to the merits.  Third, the outcome of the settlement (the award) is binding on the parties involved.

     In summarizing all the known definitions, arbitration may be defined as a method, technique, mechanism or institution outside the state court system by which a third party (or parties) called arbitrator (or arbitrators) appointed by the parties or an arbitral institution to settle disputes in accordance with the procedures and the law of merits designated by the parties or an arbitral institution, and the rendered settlement (the award) is binding on the parties to the disputes.                    

     The ultimate objective of arbitration is to settle disputes in a convenient and effective environment.  It has advantages and disadvantages.  Arbitration offers certain advantages including specialized knowledge, confidentiality, time efficiency, cost efficiency, independence and autonomy of the parties involved, in addition it unburdens the state courts by reducing the number of law suits submitted to them.  The disadvantages of arbitration include:  lack the compelling power to oblige the parties to participate in meetings, to submit evidence or to implement the award (the award is not self-executed, it cannot be executed without the intervention of state court); lack the compelling power to oblige the witnesses to give their testimonies; and lack the precedent.       

     Today, arbitration is widely used due to three reasons.  First, legislators, jurists and individuals are now more oriented and familiar with arbitration than several decades ago.  Second, all states have modern laws of arbitration ensure and reinforce the effectiveness of arbitration.  Third, there are several bilateral and multilateral conventions making the recognition and enforcement of arbitral award much easier than international judgments.      

Section Two:  Historical Development of Arbitration

     Arbitration as a method of dispute resolution has played an essential role throughout the history of mankind.  It has been an ancient method to settle disputes.  It has been affected by various modes and forms, and has undergone different development depending on the socio-political conditions of each community.  Thus, it is important to discuss, in the following, the development of arbitration in the Western Laws, and in the Islamic Law and laws of some Middle Eastern Countries.

        

(A)  Development of Arbitration in Western Laws  

     Arbitration can be traced back to the Roman Law.  Under Roman Law, arbitration was an ordinary method to settle disputes whenever the plaintiff had a cause for an action before a court.  However, the first law concerning arbitration in the modern western laws was the French ordinance of Moulins of 1566.  This law made arbitration obligatory to settle disputes between merchants resulting from commercial matters, and to settle disputes concerning inheritances and guardianships.[3]

     The intermediary law that promulgated after the French Revolution (1789) strongly favored arbitration as a method to settle disputes between citizens  because the revolutionists were suspicious of the state courts where royalists were still influential.  Many provisions in this law made arbitration an obligatory method to settle disputes between citizens.

     The law of 19^th June 1793 concerning the division of property jointly held in marriage widened further the scope of arbitration by making it the obligatory method to settle disputes related the division of such property, and disputes related to donations and wills.[4]

     The Code of Civil Procedures of 1806 included arbitration law.  Nevertheless, this code went two steps back by making arbitration a voluntary method, and by putting it under the strict control of the ordinary court.[5]  However, the Code of Commerce of 1806 made arbitration obligatory to settle disputes between partners in a company.[6]  In addition, this law validated an arbitral clause in matters of marine insurance.[7]

     England promulgated its first arbitration law in1697.  The United States of America promulgated its first federal arbitration legislation in 1925.

     Despite all these provisions concerning arbitration in western laws, arbitration did not play an essential role as dispute resolution during the 19^th century.  Moreover, arbitration within a commercial context was not well recognized or well developed as a method for settling international trade disputes.

     Arbitration gained its importance with the start of the 20^th century due to the growth and intensification of international trade.  Initially, arbitration was used in ad hoc.  Later on, experienced and prestigious international nongovernmental institutions [such as the Permanent Arbitration Court (PAC), the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA)] began managing arbitration for settling disputes related to international trade. These institutions were forerunners in formulating arbitration regulations suited the requirements of international trade.  So, arbitration became a preferable and popular method for settling international commercial disputes.  This position taken by international institutions inspired states to legislate or modernized arbitration laws favoring arbitration as a mechanism to settle internal as well as international disputes.  All these developments have led to the worldwide proliferation of arbitration.

(B)  Development of Arbitration in Islamic Law and Middle East Laws     

     In the pre-Islamic period, arbitration was known as an ordinary and usual method for settling disputes among parties and tribes.  Tribal sheikhs were usually the arbitrators because they were considered the most honorable persons.  Although the procedures of arbitration were not uniformly organized, arbitration succeeded in resolving various types of disputes.   Customs were the compelling power behind the execution of the rendered decisions by the parties because such an execution was considered to be a sign of honor and respect. [8]

     Islam came and legalized arbitration.   Consequently, arbitral procedures became better organized, and arbitration itself became the most dominant method to settle disputes in the early years of Islam before the establishment of the judges system.  Prophet Mohammad was the first arbitrator in Islam.  Many verses in the Quran oblige Muslims out of faith to refer their disputes for solutions to God and the Prophet.  Muslims used to come to the Prophet to settle their disputes.  Arbitration is documented in the Sunnah. The prophet settled disputes based on his personal wisdom, justice and fairness.  is hihhi His decisions were strictly obeyed out of faith.  The Caliphs, successors of the prophet, followed on his steps, and they arbitrated disputes between parties, Muslims or non-Muslims; even some of the Caliphs themselves were parties to arbitrated disputes.  The companions of the Prophets were also referred to for settling disputes.  All the Muslim scholars accepted arbitration as a method for dispute resolution.

     The “Majalla of Legal Provisions”, the first codification of Shariah under the Ottoman Empire which was derived from the science of Fiqh relating to civil acts and the prevailing opinions of Hanafi doctrine, provided specific provisions for arbitration.  It defined arbitration as a voluntary submission of dispute to a qualified person by two litigating parties.[9]  However it assimilated arbitration with conciliation which is another method of dispute resolution.

     Arbitration through out the old history of the Middle East was intended to be a mechanism to settle internal disputes.  Arbitration, as a mechanism for settling international disputes in the Middle East was not known except during the colonial and post-colonial period.  During this period arbitration was initiated and developed.   The historical development of such type of arbitration in the Middle East can be divided into three major stages.  The first stage (1920s to 1960s) during which the western oil companies provided in their oil concessions regulations for arbitration.  According to these regulation disputes required to be settled through arbitration.   These regulations which were western in nature and origin tended to dominate Islamic Law and favor western oil companies.  Consequently, arbitration was seen by many in the Middle East as an extraterritorial court or western biased mechanism imposed by western powers.

     The second stage (1970s to first half of 1980s) during which there was a rejection by most of the Middle Eastern countries of international expropriation laws and western type of arbitration.  Notably, during this period these countries lacked any national law concerning arbitration.

     The third stage (1985 to present), this period has witnessed a wide acceptance of international arbitration in the Middle East.   Most of the Middle Eastern countries accepted the multilateral conventions related to arbitration, and moreover enacted modern laws for arbitration influenced by the UNCITRAL Model Law of 1985.                  

Section Three: Types of Arbitration 

     Arbitration is not of one type or kind.  There are several types or kinds of arbitration.  Arbitration can be classified according to three categories: internal and international; institutional and ad hoc; and according to law and by amiable composition (ex aequo et bono).

(A)  Internal and International Arbitration

1.     Internal Arbitration:  It is arbitration involves parties who agree to settle their disputes by this method in accordance with a law of a particular country.  Each country has it own national law concerning arbitration aiming to help the parties to refer to it in order to settle their dispute. 

2.     International Arbitration:  It is arbitration involves the settlement of disputes resulting from a contract relating to interests of international trade, or a contract containing a foreign element.  Foreign elements are either subjective related to the parties of a dispute or the arbitrators, or objective related to the subject matter of the dispute, the arbitration, or the law of procedures or merits to be applied.

(B)  Institutional and Ad Hoc Arbitration

1.     Institutional Arbitration:  It is arbitration which is organized and managed by a permanent institution for arbitration to which the parties refer their disputes for settlement.  Each one of the permanent institutions for arbitration has its own regulations concerning arbitration: setting up the arbitral tribunal, the procedures of arbitration, the proper law to be applied and the administration of the processes.  Recourse to such type of arbitration is very common in international arbitration.  The role of international institution for arbitration is explicitly recognized by several multilateral conventions concerning arbitration.          

2.     Ad hoc arbitration:  It is arbitration which is established by the parties specifically for particular contract or disputes.  In this type of arbitration, the parties themselves indicate, in their arbitral clause or agreement for arbitration, all the matters related to arbitration such as the appointment of arbitrators, the arbitral procedures, and the applicable law.  This type of arbitration is often used in internal arbitration, and is rarely used in international arbitration.

       

(C)  According to Law and by Amiable Composition Arbitration

1.     Arbitration according to Law:  It is arbitration in which the arbitrators must apply the rules of law on the merits of the dispute and on the procedures of the arbitration excluding only those which are incompatible with the rules and principles of arbitration.

2.     Arbitration by Amiable composition (ex aequo et bono):  It is arbitration in which the arbitrator is authorized by the parties to a dispute to abate the application of the rules of law in favor of the principle of fairness and justice (according to the principle of equity – ex aequo et bono).

Section Four:  Arbitration and  Other Dispute Resolution

     Arbitration, mediation and conciliation are three methods or techniques of “Alternative Dispute Resolution” (ADR).   They share certain features; however arbitration differs from the other two.   Arbitration is closer to the judiciary system (court system) in its proceedings and the binding effect of its rendered settlement (award).   In order to know the similarities and the differences between these methods of dispute settlement, it is necessary to compare them.  Thus in the following we will compare first between arbitration, mediation and conciliation, and second between arbitration and the ordinary judiciary (state court). 

(A)  Comparison between Arbitration, Mediation and Conciliation

     Arbitration, mediation and conciliation are three methods of disputes settlement by which third parties assist the parties to a dispute in reaching a settlement.  All involve the intervention of a supposedly disinterested individual (individuals) or organ to help the parties.  In case of arbitration, the failure of the parties to settle their dispute by themselves may lead them to agree to refer it to arbitration for settlement.  In case of mediation or conciliation when the parties are unwilling to negotiate, or fail to negotiate effectively, assistance by a mediator or conciliator may be necessary to help them in procuring a settlement; this assistance may be requested by one or both of the parties, or it may be voluntarily offered by a third party.

     Although there is no distinction in the general features of mediation, and conciliation, a theoretical and practical distinction can be made among them according to the degree of third party participation, and the extent to which the disputants are obliged to accept the outcomes of the procedures.

     Mediation is a process through which an outside party (third party) endeavors to bring the disputants together and assists them in reaching a settlement.  The third party offers his assistance to the parties to a dispute. The consent of the disputants is not necessarily required initially, but no mediation proceedings can be commenced without their consent.  The mediator actively and directly participates in the settlement itself.  He does not content himself with making negotiations possible and undisturbed.  He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute.  However, his proposals represent nothing more than recommendations.  They have no binding force on either disputant.  The parties to a dispute are free to accept or reject his proposals.

     Conciliation is a process of settling a dispute by referring it to a conciliator or specially constituted organ whose task is to elucidate the facts and suggest proposals for a settlement to the parties concerned.  However, the proposals of conciliation, like the proposals of mediators, have no binding force on the parties who are free to accept or reject them; this is in contrary to the arbitration settlement (award) which is binding on the parties.

     As in case of mediation, conciliators may meet with the parties either jointly or separately.  The procedures of conciliation are generally instituted by the parties who agree to refer their dispute to an already established organ, commission or a single conciliator, which is set up on a permanent basis or ad hoc basis; third parties cannot take the initiative on their own.  The conciliators are appointed by the parties to a dispute.  They can be appointed on the basis of their official functions or as individuals in their personal capacity.  The conciliator investigates the facts of the dispute and suggests the terms of the settlement.   Conciliation differs from mediation in that it is more formal and less flexible than mediation; if a mediator’s proposal is not accepted, he can present new proposals, whereas a conciliator usually present a single report.   

     Mediation and conciliation have both advantages and disadvantages as compared to arbitration or judiciary (state court).  They are more flexible than arbitration or judiciary.  They leave more room for the wishes of the disputants and the initiatives of the third party.  The disputants remain in control of the outcome.  Their proceedings can be conducted in secret.  However, they have disadvantages.  Their proceedings cannot be started and be effective without the consent, cooperation, and goodwill of the disputants.  The proposed settlement is no more than a recommendation with any binding force upon the disputants.

(B)  Comparison between Arbitration and Ordinary Judiciary                      

     The major disadvantage of the above methods of dispute settlement is that the parties to them are under no legal obligation to accept the proposals of settlement suggested to them.  Thus, the adjudicative methods of dispute settlement are preferable because they provide the issuance of binding decisions, rather than mere recommendations as in the cases of mediation and conciliation.  It is this binding force of the decisions rendered at the end of the adjudicative methods that distinguishes these methods from other methods of dispute settlement, such as, mediation and conciliation.

     Adjudicative methods of dispute settlement consist of two types of procedures, arbitration and judiciary (state court).  Arbitration and judiciary are two methods involve the determination of differences between litigants (disputants) through legal decisions.  Whereas in case of judiciary the decision is made by judges who are officially and permanently appointed by the state to administer justice, in case of arbitration it is made by private arbitrators who are chosen by the parties to a dispute.  The mission of an arbitrator is similar to that of a judge; however, a judge derives his authority from the state, while an arbitrator derives his authority from the wills of the parties reflected in their agreement of arbitration.  The major characteristic of these two methods is that an award or a judicial decision is binding on the parties and must be carried out in good faith.

       Arbitration is considered the most effective and equitable means of dispute settlement. However, it is much more flexible than judicial settlement.  It gives the parties to a dispute the choices to appoint the arbitrators, to designate the seat of the tribunal, and to specify the procedures to be followed and the law to be applied by the arbitrators.  Moreover, the arbitration proceedings can be kept confidential.

     Arbitration cannot be initiated without the agreement of the parties to a dispute. An agreement of arbitration may be concluded for settling a particular dispute, or a series of disputes that have arisen between the parties. The usual pattern in arbitration agreement as regards the appointment of arbitrators is that each of the two parties has to appoint one arbitrator or more, and the appointed arbitrators have to appoint the arbitrator, who is known as an “umpire”.  Usually, the arbitral tribunal consists of three arbitrators, who can decide by majority vote.  The parties may agree to refer their dispute to a single arbitrator.

    

Chapter Two

The Sources of the Law of Arbitration

    

     The term “sources of Law” is used to mean two things:  first, the actual materials determining the rules applicable to a given legal situation (the material sources), and second, the legal methods creating rules of general application (the formal sources).  However, because it is difficult to maintain this distinction, the two meanings are used interchangeably.

     Sources of the law of arbitration are of two kinds: national and international.  The national sources are those found in:  (1) the national law of a particular state which constitutes its normative system; and (2) the regulations set up by private national institutions.   International sources are those found in: (1) the agreements (treaties or Conventions) between states whether bilateral or multilateral agreements, whether universal or regional; (2) the rules of arbitration set up by the specialized United Nations commissions; and (3) the rules of arbitration set up by private international institutions, such as the International Chamber of Commerce and the London Court of International arbitration.

Section One:  National Sources

     The national sources, as we mentioned above, are found either in the national law of each state or the regulations set up by private national institutions.  In fact every state has legislate a law aiming to regulate arbitration within its jurisdiction and to encourage parties, whether in or abroad, to use its own law for the purpose of setting their dispute.  Lebanon is one of these states.  Because the Lebanese legislator was influenced in adopting its arbitration law by the French law, so it is important to study this law first before studying the Lebanese arbitration law, then we will check on other countries in Europe and in the Middle East as a comparative study.

(A)  The French Law   

     In France, the law of arbitration is found in articles 1442 to 1491 related to internal arbitration and articles 1492 to 1507 related to international arbitration of the French Civil Code.  These articles came into being as the result of two steps undertaken by the French legislator.  The first step took place in 1980 when the law of May 14, 1980 was promulgated reforming and modernizing the law related to internal arbitration.  The second step took place a year later when the law of May 12, 1981 was promulgated introducing for the first time the law related to international arbitration.

     This law of international arbitration was in most of its provisions a codification of French jurisprudence concerning international arbitration.  Between 1960 and 1970, the First Civil Chamber of the Court of Cassation delivered a series judgments formulating rules and principles concerning international arbitration.  The most important principles were:

-         The autonomy of the arbitral clause in relation to the principal contract.

-         The validity of the arbitral clause in international matters.

-         The validity of an agreement for international arbitration concluded between the state or a moral person of public and other party.

(B) The Lebanese Law  

     The Lebanese law of arbitration is found in the Code of Civil Procedures of 1983.  This Code devotes an entire chapter (bab) to arbitration.  The chapter consists of two sections.  Section one deals with internal arbitration from article 762 to article 808, however, several of these articles were amended by the Law no. 440 of July 29, 2002.  Section two deals with international arbitration from article 809 to article 821.

     In the 1983 Code of Civil Procedures, the Lebanese legislator, in one hand, modernized the provisions related to internal arbitration of the 1933 Code of Civil Procedures, and on the other hand, introduced new provisions related to international arbitration.  In promulgating its arbitration law in 1983, The Lebanese legislator was influenced by the French laws of arbitration of 1980 and of 1981, even the provisions related to international arbitration were copied from the French provisions.  Lebanon followed the French position regarding the distinction between internal arbitration and international arbitrations; it provided separate provisions for each of these two kinds of arbitration.  This feature of the Lebanese law distinguishes it from the laws of other Arab states.

(C)  Comparative Law    

     Today, all states have legislations concerning arbitration.  The states’ movements to adopt laws of arbitration or modernizing their existing laws of arbitration took place during the seventies, eighties and nineties’ of the Twentieth Century.  However, Switzerland enacted its law of arbitration in1969; so it was the leader in this regard.  Other European states followed: Belgium in 1972, England in 1970, (France in 1980 and 1981, as we mentioned above), Great Britain in 1996.

     Arab states adopted legislations concerning arbitration during the late eighties and the nineties of the last century: Saudi Arabia in 1988, Bahrain in 1992, Tunisia in 1993, Kuwait in 1995, Sultanate of Oman 1997, Algeria in 1993 and 1996.  Moreover, they established permanent centers for arbitration, such as the Cairo Regional Center and the Dubai Arbitration Center.  In Lebanon, the Beirut Chamber of Commerce and Industry established its Center of Arbitration.

     Hereby, it is important to mention that all the modern legislations adopted by states intended to achieve similar objectives.  The first objective is to ensure and reinforce the effectiveness of arbitral agreement; this is done by recognizing the arbitral agreements, simplifying its forms and its requirements for evidence, and guaranteeing the autonomy of arbitration.  The second objective is to ensure the independence of international arbitration from the national law of any state; this is done by recognizing the freedom of the parties to designate the law of procedure and of substance to be applied by the arbitral tribunal, and by recognizing the same freedom to arbitrators and centers of arbitration.  The third objective is to limit judicial control over arbitration.           

Section Two:  International Sources

     Primarily, the sources of international arbitration are those enumerated in article 38 of the Statute of the International Court of Justice.  These sources are: international customs; international conventions, whether general or particular; general principles of law; judicial decisions; legal opinions; and ex aequo et bono (the principle of equity).

     Since international conventions constitute today the most important source of the modern international law of arbitration, we will study them in the following.  At the international level there are obligatory international conventions and optional international rules concerning international arbitration.

(A)  Obligatory International Conventions             

     International conventions dealing with arbitration are of two types, bilateral and multilateral.

1)    Bilateral international conventions are those conventions dealing incidentally with arbitration.  The denomination, nature and objects of these conventions vary.  However, the main object of these conventions is economic cooperation or juridical aid.  Nevertheless, the one point common in these conventions is the use of arbitration as the method to settle disputes generated from them.  Examples of these conventions are treaties of commerce and navigation, treaties of extradition, and treaties of equal treatment of citizens of one country in the other.

2)    There are several multilateral conventions dealing directly and exclusively with arbitration.  These conventions are:

a.     The New York Convention for the Recognition and Enforcement of Foreign Award of 1958 (which came into force in 1959): This convention is of great importance to international arbitration because it allows a better understanding of the autonomy of international arbitration and   makes international arbitration more effective.  It has introduced two great improvements to international arbitration.  At the start of arbitration procedure, it ensures the effectiveness of arbitral agreement.  At the end of the procedure, it facilitates the execution of the award.  However, this convention failed to deal with many issues concerning arbitral procedure.

b.     The European Convention of 1961:  This convention was adopted by the European Economic Commission to remedy the shortcomings of the 1958 New York Convention.  It adds to the New York Convention without replacing it.  Despite its title, the European Convention is not limited to European states;  it was ratified by some non-European states which were granted consultative status at the European Economic Commission.

c.      The Washington Convention of 1965:  This convention is intended to provide arbitral procedures to settle disputes involving international investments.

d.     The Arab Amman Convention concerning commercial arbitration which was concluded and ratified by several Arab states in 1987.

(B)    Optional Rules of Arbitration

     There are two optional international rules of arbitration:  UNCITRAL Arbitration Rules and UNCITRAL Model Law.

a.     UNCITRAL Arbitration Rules:  The Rules of Arbitration of the United Nations Commission for International Trade Law (UNCITRAL) was adopted in 1976, and was recommended by the General Assembly of the United Nations in its resolution dated 15 December 1976.  These rules are intended for ad hoc arbitration.  The parties in an ad hoc arbitration may designate the procedure of arbitration by referring to these rules.  The most important improvement introduced by these rules is the provision related to the mechanism for the appointment of arbitrator or arbitrators.  The mechanism provides that in case of a blockage concerning the appointment of arbitrators, the authority (appointing authority) previously designated by the parties in their agreement has the power to intervene in the appointment of arbitrators, however, if no appointing authority was designated, then the Secretary General of the Permanent Court of Arbitration at The Hague will designate an appointing authority.

b.     The UNCITRAL Model Law:  This model law was adopted by the UNCITRAL in 1985, and communicated to the United Nations General Assembly asking it to urge the members of the United Nations to take it into consideration when promulgating or revising its legislation in order to answer the contemporary needs of international commercial legislation.  The UNCITRAL intended by proposing this model law to ensure harmony among various national legislations concerning arbitration, so states were invited to take it into consideration.  In fact all states that have been legislating since 1985 have been taking it into consideration.  

Chapter Three

The Domain of Arbitration

     One of the fundamental rights of a state is the right of territorial jurisdiction which is derived from the right of sovereignty.  This right entitles a state to have the absolute and exclusive authority over all persons, property and events within the limits of its national territory.  This authority encompasses the jurisdiction of a state to enact laws, to enforce laws and to adjudicate persons and events over its national territory.   In this sense providing “justice” is one of the prerogatives of a state which is entrusted to its judicial authority represented by its national courts.  A state does not surrender this prerogative except in very limited cases and when its public policy is not involved.

     Since arbitration is a private justice takes place outside a state justice (outside a state jurisdiction -- a state court), it is not lawful except when a state allows it by legislation.   A state allows arbitration in matters not involving its public policy and not involving certain categories of persons protected by law because of their physical, mental or economic weaknesses.  Matters involving state public policy such as penal matters, and matters concerning the personal status such as social status, right of succession and certain basic rights are under the exclusive jurisdiction of state.   They are outside the domain of arbitration.  It is prohibited to settle these matters by arbitration.  Accordingly, there are two limitations to arbitration, the first concerns persons, and the second concerns subject matters.

    Who has the capacity to recourse to arbitration?  Which matters are arbitral?  In the following sections we will answer these two questions; however, our study will focus only on the Lebanese Law.

  

Section One:  The Capacity to Recourse to Arbitration              

     There is no mentioning in the provisions related to arbitration in the Lebanese Code of Civil Procedures (C.C.P) of the persons who have the capacity to recourse to arbitration.  Article 762 of the C.C.P states the following:

 “The contracting parties can insert in the civil or commercial contract concluded between them a clause providing that arbitration is the means of settling all disputes capable to be compromised resulting from the validity, interpretation or execution of such contract.

The State and persons of public law, whatever the nature of the contract, the subject of a dispute, can recourse to arbitration …, however, the arbitral clause or agreement will not be operative in administrative contract unless it is authorized by a decree taken in the Council of Ministers upon a recommendation of the concerned minister regarding the state, or the supervising minister regarding the moral persons of public law.”

    

     Article 765 of the same code states:

“The agreement for arbitration is an agreement in which the parties agree to settle a dispute capable to be compromised, arising between them, by means of arbitration by one of more persons.”

     Article 809 states:

“The state and all public moral persons can recourse to arbitration.”

     Articles 762 and 765 of the C.C.P mention that the parties to a civil or commercial contract can recourse to arbitration, however they do not identify these parties.  To know who has the capacity to recourse to arbitration, we must first know who has the capacity to conclude a contract or to perform certain functions.   In this regard we should refer to the Code of Obligations and Contracts (C.O.C) particularly articles 215 to 218, the Code of Commerce (C.C), other provisions of the Code of Civil Procedures, and other provisions of relevant laws.  With regard of a state or moral persons of public law, articles 762 and 809 allows them to recourse to internal or international arbitration, whatever the nature of the contract, the subject of the dispute.  Accordingly, the following persons, natural and moral, have the capacity to recourse to arbitration:

(A)  Natural Persons

     The natural persons who have the capacity to conclude a contract and consequently can recourse to arbitration are the following:

1.     A natural person who is eighteen years of age and above, except a person who is  insane or who is totally without discernment, has the capacity to undertake an obligation, thus to conclude a contract including an agreement to recourse to arbitration.  Accordingly, a minor, an insane major and a major totally without discernment lack the capacity to conclude a contract and consequently they cannot recourse to arbitration.

2.     The representative or the guardian of a minor, an insane major or a major totally without discernment has the capacity to conclude a contract on behalf of the person he is responsible for.  However, he should obtain a prior authorization from the concerned judge in case he wants to conclude an agreement of arbitration, because such an agreement is not considered as an ordinary administrative act.

3.     A minor duly authorized to engage in commerce or industry, who is considered as a major, can conclude a contract including an agreement of arbitration for the requirements of his business and only for such business.  However, the authority granted to him by the judge should include the right to compromise to be able to conclude an agreement of arbitration.

4.     A bankrupt person is deprived of the right to administer his property.  He cannot conclude any contract including an agreement of arbitration.   However, any act, including an agreement of arbitration, done by a person before the declaration of his bankruptcy remains operative and obliges the receiver of the bankruptcy to respect it.  Moreover, a person who is the object of preventive composition is not considered lacking the capacity to act, so he can continue administering his property and his business (including the conclusion of an agreement of arbitration) but under the supervision of the appointed commissioner and the concerned judge.

5.     A mandatary has the power to act and perform functions entrusted to him by his mandator, in accordance with the provisions of the proxy (mandate) given to him.  However, signing an agreement of arbitration requires to be specifically provided for in the proxy.

(B)  Moral Person of Private Law                  

     Moral person of private law has the capacity to conclude a contract including an agreement of arbitration.  However, the question is:  who has the power to sign on behalf of the moral persons?  The answer depends of the nature of the moral person, the law governing it and its statute (by-law).

     Generally, the managing director, the director, the president, or the representative of the moral person has to power to sign an agreement of arbitration as long as he is not forbidden to do so by a special provision or decision.  Signing such an agreement is considered an ordinary administrative act which does not need any special authorization.

(C)  Moral Person of Public Law   

     Article 762 as amended by the Law no. 440 of July 29, 2002 and article 809 expressly allows a state and all moral persons of public law to recourse to internal or international arbitration, whatever the nature of the contract, the subject of the dispute.   However, the arbitral clause or agreement in the internal arbitration will not be operative in administrative contract unless it is authorized by a decree taken in the Council of Ministers upon a recommendation of the concerned minister regarding the state, or the supervising minister regarding the moral persons of public law.

     It is notable to mention here that public institutions of economic nature can recourse to arbitration when they conclude a contract under the private law.                

Section Two:  Arbitral Disputes                      

     Since the Lebanese Law provides two separate provisions, one related to internal arbitration and another related to international arbitration, it is necessary to study the disputes which are capable to be arbitrated under each of these two types of arbitration. 

(A)  Disputes of internal Arbitration 

     According to articles 762 and 765 of the C.C.P, the disputes related to internal civil, commercial and administrative contracts which are capable to be compromised can be arbitrated.   However, neither these articles nor any other articles of the Code of Civil Procedures specify the disputes which are capable to be compromised.  In this regard, we should refer to relevant provisions of other laws, such as the Code of Obligations and Contracts (C.O.C) [particularly articles 1037 to 1040], the Code of Commerce (C.C), and the Code of Labor (C.L).

     Article 1037 of the C.O.C states that its is not permitted to compromise on  questions of public policy (order) or personal status, or on personal rights which are not within the compass of trade, but it is permitted to compromise on questions of money resulting from a question of personal status or from an offence.  Further article 1039 of the same code states that one cannot compromise on the right to food, but can compromise on the way of supplying food or of paying the due arrears.   Also article 1040 states that one can compromise for a payment less than his legitimate share established by the inheritance law which is already acquired, provided that the parties know the shares of the estate. 

     In addition, other Lebanese laws excluded from arbitration certain matters and retain for them the exclusive competence of the state courts.  The reason for such exclusion is that these matters are important because they aim to safeguard certain personal interests in the view of protecting certain social rights.

     Accordingly, all matters involving public policy, personal status, non-traded personal rights, the right to food, the right to inheritance, and the matters which are under the exclusive jurisdiction of state courts cannot be arbitrated.  In the following, we will discuss these matters which fall outside the domain of internal arbitration.

1.     Questions of Public Policy 

     Questions of public policy are those aim at protecting and guaranteeing the political, social and economic interests of a state and a society at large.   These questions are subject to the exclusive jurisdiction of a state.  They cannot be subject to a compromise, and so they cannot be arbitrated.   Examples of such questions are penal matters.  However, any compensation of a pecuniary (monetary) nature decided as damages can be arbitrated. 

2.     Questions of Personal Status

     Questions of personal status are those involve age, capacity, nationality, and social status such as marriage, separation, divorce, adoption, and inheritance.  All these questions are subject to the exclusive jurisdiction of the state, whether its ordinary courts or religious courts.  They are not capable to be compromised and consequently cannot be arbitrated; they fall outside the domain of arbitration.  However, article 1037 of the C.C.P permits compromise on monetary interests resulting from such questions.  In such a case recourse to arbitration is permitted, and arbitration should deal with the amount of money to be paid as compensation.

3.     Personal Rights    

     Personal rights are those which constitute an integral part of an individual.  They are human rights and freedoms of an individual which involve such as his physical integrity, human integrity, good name, civil and political rights, and economic rights.  These rights are not capable to be compromised, so they cannot be arbitrated.  However, any monetary interests resulting from such rights can be compromised and so can be arbitrated.

4.     The Right to Food   

     According to article 1039 of C.C.P, it is not permitted to compromise on the right to food, since this right is connected to the human dignity of a person.  So, this right cannot be arbitrated.  However, it is permitted to compromise on the way of supplying food or of paying the due arrears.

5.     Rights of Inheritance 

     According to article 1040 of the C.C.P, it is not permitted to compromise on inheritance not yet open, or to make any stipulation concerning it or related to it.  This prohibition is a question of public policy.   However, one can compromise on hereditary rights already acquired on condition that the parties know their shares in the inheritance; so arbitration is permitted in such a case.

6.     Questions of Bankruptcy  

     According to article 490 of the C.C and article 109 of the C.C.P, a state has an exclusive jurisdiction in all questions concerning bankruptcy.   Consequently, all these questions cannot be arbitrated, since public policy is involved.  However, an agreement for arbitration concluded by a person before declaring his bankruptcy (before becoming bankrupt) is considered valid, and the receiver must respect it and execute it. 

7.     Questions of individual employment Contract and Social Security  

     According to article 79 of the Code of Labor, a state represented by Councils of Labor Arbitration has the exclusive jurisdiction on all questions concerning individual employment contract and social security.  Despite their name, Councils of Labor Arbitration are unique courts within the framework of the state judiciary system.  A council is a state court presided by a judge and has two members, one represents employers, and the other represents employees (workers).  Consequently, all disputes between employers and workers or labor unions, between medical practitioners and doctors of social security, or between insured persons and employers are under the exclusive jurisdiction of Councils of Labor Arbitration, so they cannot be arbitrated.

    Notably, it is important to mention that the law makes a distinction between individual employment contract and collective labor contract.  While disputes concerning individual employment contract are outside the domain of arbitration, disputes concerning collective labor contract can be arbitrated.  The Law of September 2, 1964 concerning collective labor contract permits the parties to any dispute arising from such a contract to settle it by means other than the judicial settlement, namely mediation and arbitration; this can be done  either in accordance with an arbitral clause inserted in their collective contract or an agreement for arbitration concluded later.

8.     Contracts of Commercial Representation 

     Article 5 of the Legislative Decree no. 34 of August 5, 1967, provides that the court of the place where the commercial representative operates has the jurisdiction to adjudicate disputes arising from the contract of commercial representation, regardless any agreement to the contrary.

     This article has raised a controversy concerning whether the exclusive jurisdiction of the court is a matter of public policy aiming at protecting the commercial representative.  If this article involves public policy, then disputes arising out of a contract of commercial representation cannot be arbitrated.

     The Lebanese courts have not given a uniform and consistent answer to this question.  In its decision of 17^th July 1988, the Court of Cassation validated the agreement for arbitration (an agreement of arbitration concluded after the arise of a dispute -- a submission to arbitration agreement) on the ground that such an agreement was derived from the party’s autonomy of the will, and it was excluded from the provision of article 5 since it came outside the framework of the said article; therefore it was not contrary to public policy.

     An opposite position was taken by the Court of Cassation in its decision of 19^th March 1998.  This court upheld the decision of Beirut Court of Appeal dated 29^th October 1998 which in its turn confirmed the decision of the Beirut Court of 1^st instance dated 21^st January 1997.  The Beirut Court of Appeal considered that article 5 gave exclusive jurisdiction to the state courts, and this was a matter of public policy aiming at protecting the interests of Lebanese commercial representatives (agents), so article 5 should be interpreted restrictively.  The Court of Cassation in upholding the said decision of the Beirut Court of Appeal gave its reasons by saying that the contract binding the parties was a contract of commercial representation under article 5 which gave the ordinary court of the place of operation of the commercial representative the jurisdiction to settle disputes arising from the execution of such contract; consequently, the Court of Appeal by declaring its competence to settle the dispute in question had correctly applied the law of commercial representation since this was a matter of public policy and therefore the agreement for arbitration could not applied because it is invalid.

     In its decision of 19^th July 2001, the Court of Cassation returned to its first position in validating the agreement for arbitration, not an arbitral clause.  This decision came to uphold the decision of the Beirut Court of Appeal dated 2nd February 1999.                                                     

(B)  Disputes of International Arbitration

     Article 809 of the C.C.P provides that international arbitration is that concerns the interests of international trade (Commerce).  Accordingly the disputes arising from international commercial contracts can be internationally arbitrated.   In these disputes, private persons, the state and all persons of public law can recourse to arbitration.  The question is what an international commercial contract is?

     Generally, a contract to be an international commercial contract should fulfill two types of criteria, legal and economic.  Legal criterion is based on the relation of a contract to more than one legal system.  The elements which serve as bases for this criterion are these related to the persons involved, such as different nationalities, domiciles and habitual residences.  Objective elements are these related to the contract itself or the subject of the dispute, such as the place of signing the contract, the place of its execution, the place of the assets or services, the place of payments, the law governing arbitral proceedings or the merits of the dispute, the place of arbitration, the nationality or domicile of the arbitrators,  the nationality/headquarters  of the institution of arbitration, the place where award to be enforced, the language used and the currency specified.  If one, at least, of these elements is attached to different countries, then the contract will be considered international. 

     Economic criterion is based on the relation of a contract to the interests of international trade which involve cross border transactions concerning a transfer of goods, services, funds or investments.  It is this criterion which is expressly required by the Lebanese Law to consider a contract to be an international commercial contract (concerning the interests of international trade), and thus disputes related to such a contract can be arbitrated internationally.  Lebanon in this regard follows the same position of the French Law.       

Chapter Four

The Agreement of Arbitration

     The recourse to arbitration is not possible without the agreement of the parties to refer their dispute to an arbitrator or arbitrators for a settlement.    The agreement of the parties may be expressed in on of two ways.  An arbitral clause inserted in a principal contract concluded between them, or an arbitral agreement concluded after a dispute arises.

     The Lebanese Law specifies separate provisions for each of these two ways of agreement of arbitration. It subjects each one to certain conditions and gives it certain effects.  In addition, it distinguishes between an agreement in internal arbitration and an agreement in international arbitration, and subjects each one to separate provisions.  This is the reason why in the following three sections we are going to deal with three types of arbitration agreements, arbitral clause, arbitral agreement and international arbitration agreement.

Section One:  Arbitral Clause

      Article 762 of the C.C.P provides the following:

 “The contracting parties can insert in the civil or commercial contract concluded between them a clause providing that arbitration is the means of settling all disputes capable to be compromised resulting from the validity, interpretation or execution of such contract.”

     Article 763 of the same code provides the following:

“The arbitral clause is not valid unless it is written in the principal contract or in a document to which this contract refers.

It should, under pain of nullity, include the designation of the arbitrator or arbitrators in persons or qualities, or the indication of the way to designate them.”

     According to article 762, the parties to a contract, whether civil or commercial, can insert in it a clause providing that disputes resulting from their contract will be settled by means of arbitration.  This clause is known as “arbitral clause”.   Arbitral clause is a clause inserted in the principal contract concluded between the parties, whereby they agree to settle their disputes by arbitration.   This agreement of the parties represented by their arbitral clause will generate certain effects concerning their relation with each other, their relations with third parties, and the competence of the state court.  However, these effects will not take place unless the arbitral clause is valid.  To be valid the arbitral clause should satisfy the conditions stipulated in articles 762 and 763.

     In the following we will deal with:  first, the conditions for the validity of arbitral clause and second, the effects of arbitral clause.

(A)  Conditions for the Validity of Arbitral Clause

     Articles 762 and 763 provide two types of conditions for the validity of arbitral clause, conditions of forms and conditions of substance.

(I)                    Conditions of Form:  The arbitral clause to be valid should satisfy two conditions related to form.  It should be in writing and be inserted in the principal contract or in a document to which a contract refers.

1.     The arbitral clause should be in writing:  Article 763 of the C.C.P requires for the validity of an arbitral clause to be written in the principal contract or in a document to which the contract refers.  This article requires an arbitral clause to be in written form, otherwise it will be null.   It seems that the legislator intended by imposing this condition under pain of nullity to make sure that the parties knowingly, willingly and without any ambiguity intend to renounce state jurisdiction (the ordinary jurisdiction) and retain the jurisdiction to arbitration (exceptional jurisdiction);  such intention of the parties cannot be evident except when the agreement of the parties be in writing.  Consequently, the written form is required not only to ensure validity of the clause but also as a proof for the existence of an agreement to recourse to arbitration.   Such an agreement cannot be proved by any other proof such as oath or admission.  It has been clearly admitted by jurisprudence and doctrine that when the validity of a legal act or fact depends on it being in writing, then it cannot be proved by any other means.  This condition of written form is required for both civil and commercial contracts.   For this reason, the principle related to the freedom of proof in commercial matters is not applicable in case of arbitral clause.

2.     The arbitral Clause should be inserted in the principal contract or in a document to which the contract refers:  Article 763 requires that an arbitral clause be inserted in the principal contract concluded between the parties or in a document to which this contract refers, otherwise it will be invalid (null and void).  

(II)           Conditions of Substance:  According to articles 762 and 763, the persons who have the capacity to agree on arbitral clause are private persons, the state and persons of public law.   The arbitral clause can be inserted in civil, commercial or administrative contracts, and it should be related to disputes which are capable to be compromised.   It should designate the arbitrator or arbitrators in persons or qualities or designate the way for their designation.  These are the conditions of substance required by law for the validity of an arbitral clause.

1.     Capacity to make an arbitral clause:  As we mentioned in the previous chapter, only persons, natural or moral, who under the Code of Obligations and Contracts have the capacity to conclude a contract can make an arbitral clause.  Any arbitral clause made by a person lack such capacity will be invalid.  A state and persons of public law have a capacity to make an arbitral clause, however, this clause will not be operative in administrative contracts until it is authorized by a decree taken in the Council of Ministers upon a recommendation of the concerned Minister in case of a state or of the supervising Minister in case of moral persons of public law.

2.     Disputes capable to be arbitrated:   As we mentioned in the previous chapter, disputes which are capable to be compromised can be arbitrated and thus be objects of an arbitral clause.  An arbitral clause related to disputes which cannot be arbitrated will be invalid.

3.      Designation of the arbitrators:    Article 763 requires, under pain of nullity, the designation of the arbitrator or arbitrators in persons or qualities, or the indication of the way to designate them.  By imposing this condition, the legislator intended to hasten the forming of an arbitral tribunal when a dispute arises between the parties to a contract.  This intention is confirmed by article 764 which provides that if after a dispute arises there is an obstacle facing the appointment (nomination) of the arbitrator or arbitrators because of an act of one of the parties or of applying the way to appoint (nominate) them, a request for appointing them can be requested from the president of the court of first instance.   In this event, the president of the court of first instance can either appoint the required arbitrator or arbitrators if he finds that the arbitral clause is valid, or declare that appointment is not possible because the arbitral clause is null or insufficient to enable the appointment of an arbitrator or arbitrators.

     If the arbitral clause refers to an authority (institution for arbitration or a natural person) to appoint the arbitrators, then this authority has to make such appointment.       

(B)  Effects of the Arbitral Clause

     The agreement of the parties represented by their arbitral clause generates certain effects concerning these parties and concerning the third parties.

(I)                    Effects concerning the parties:  The arbitral clause generates three effects concerning the parties.  The first is related to the constitution of the arbitral tribunal, the second is related to the incompetence of state courts, and the third is related to the contract itself.

1.     Constitution of the arbitral tribunal:  The agreement of the parties represented by their arbitral clause expresses their intention to settle their dispute by arbitration.  When a dispute arises, the parties have to set up the arbitral tribunal by appointing the designated arbitrator or arbitrators.  The parties are under an obligation to do so pursuant to their arbitral clause.  When each of the parties appoints his arbitrator and the appointed arbitrators choose the third arbitrator who is known as umpire, then arbitration will start.  However, if one of the parties refuses or is reticent to appoint his arbitrator, the other party can ask him to do so or he, in case the other party insists not to comply with his duty, can ask the president of the court of first instance to appoint the required arbitrator instead of the refusing party.  This proves that it is enough for one party to appoint his arbitrator for the process of arbitration to be initiated and put in motion.

2.     Incompetence of state courts:  When the parties agree to settle their disputes by arbitration, they renounce the competence of state courts.  This incompetence is founded on the principle of contractual freedom and the obligatory effects of a contract.  The parties are under an obligation to refer their dispute to arbitrator or arbitrators for settlement.  However, it may happen that one of the parties brings a lawsuit before a state court for the settlement of their disputes in spite of the existence of an arbitral clause in their contract.  In this case the other party can either accept the competence of the court, so the proceedings will take place there on the ground that both parties renounce arbitration and accept the competence of the court, or plead the incompetence of the court on the ground that there is a valid arbitral clause binding them.  However, such plea must be invoked at the start of the proceedings and before any discussion of the merits of the lawsuit by the court as it is required under article 53 of the C.C.P.  Thereby, the court will declare its incompetence.  Notably, if neither party objects the competence of the court, the court will not make such a declaration ex officio, so the case will be settled by the court.

     Moreover, it is possible that a party brings the lawsuit before the court pleading the invalidity of the arbitral clause and consequently the incompetence of the arbitrator.  This case may happen either before the constitution of the arbitral tribunal or after such constitution.  If it happens before the constitution of the arbitral tribunal, the president of the court of first instance can examine the matter, and can declare the arbitral clause to be void if he finds it manifestly invalid or insufficient to enable the appointment of the arbitrators, and then the disputes can be settled by the court; this decision by the president of court of first instance is subject to appeal.[10]   However, if the president of the court of first instance finds that the arbitral clause is valid can, at the request of the other party, appoint the required arbitrators and refer the parties to settle their disputes through arbitration.

     If the lawsuit to invalidate the arbitral clause is brought after the constitution of the arbitral tribunal, the other party can object the competence of the court in accordance with article 53 of the C.C.P on the ground that the competence of arbitral tribunal is exclusive.  The principle “competence about competence” gives the arbitral tribunal the power to decide its own competence.  This principle is affirmed by article 785 of the C.C.P which provides that the arbitrator has the power to decide his own competence in its principle or its extent.    

3.     Autonomy of the arbitral clause:  The principle of autonomy of the arbitral clause means that it is independent of the principal contract in which it is inserted.  This principle is affirmed by article 764 of the C.C.P which provides that the invalid arbitral clause is considered as nonexistent.   In this regard the invalid arbitral clause does not affect the validity of the principal contract which remains valid in its other provisions and is binding on the parties.                                  

(II)           Effects concerning third parties:  An arbitral clause represents the agreement of the parties to renounce the state jurisdiction, and to settle their disputes by arbitration.  Since it is an agreement, it has relative effects concerning only the parties, the signatories to such agreement.  Third parties are not affected by any contract or agreement not concluded by them.  This general principle is established by article 225 of the Code of Obligations and Contracts (C.O.C) which provides that a contract in general has no effect on third party, meaning that it does not give him rights nor makes him a debtor; a contract has relative effect limited to the contracting parties or those who generally acquire their rights.  However, this article makes one exception to the relative effect of a contract which occurs in case of the cession of a contract.  In this case the contract will be transmitted with all it provisions to the third party.  In this sense, if there is a cession of a contract which contains an arbitral clause, the clause will be transmitted with the contract.  The same exception applies in case of cession of shares from one partner in a company to a third party.  If the statute of the company contains an arbitral clause, the third party acquiring the shares will be bound by the arbitral clause.

Section Two:  Arbitral Agreement

     Article 765 of the C.C.P provides the following:

“An arbitral agreement is an agreement by which the parties agree to settle a dispute capable to be compromised arisen between them by way of arbitration by one person or several persons”.

     Article 766 of the same code adds the following:

“An arbitral agreement cannot be proved except by writing.

It should include, under pain of nullity, the determination of the subject-matter of the dispute, the designation of arbitrator or arbitrators in persons or qualities or the indication of the way to designate them.

The arbitral agreement is considered null and void if the designated arbitrator refuses the mission entrusted upon him.”

     According to these two articles an arbitral agreement is an agreement concluded after the dispute arises.  By this agreement the parties agree to renounce the competence of state courts and to settle their dispute by arbitration.  The disputing parties sign this agreement with full knowledge of the dispute and its nature, and consequently they can designate the arbitrators who are more suited for that kind of dispute.  Therefore in this type of arbitration the disputed parties will be in better position than in case of arbitral clause.  In arbitral agreement they will be less likely to face obstacles with regard of nominating arbitrators or suitable arbitrators, and with regard of the initiation of the process of arbitration.  However, the arbitral agreement to take its effects, it must be valid.  To be valid, it should satisfy the conditions of form and of substances stipulated by these two articles.

     In the following we will deal with:  first, the conditions for the validity of arbitral agreement and second, the effects of arbitral agreement.

(A)       Conditions for the Validity of Arbitral Agreement                           

     Articles 765 and 766 provide two types of conditions for the validity of arbitral agreement, conditions of forms and conditions of substance.

(I)                    Conditions of Form:  Article 766 provides that an arbitral agreement cannot be proved except in writing.  This is the only condition of form required by this article.  However a written form is not required for the validity of the arbitral agreement as in case of arbitral clause, but as a means of proof.  The lack of written document is not sanctioned by nullity of the arbitral agreement.  The arbitral agreement can be proved by other means such as admissions, deciding oath, any paper, manuscript emitted by either of them, or an exchange of letters or documents.

     Nevertheless, it is important to mention that article 800 of the C.C.P provides that the arbitral award is null and void if it is issued without having an agreement of arbitration. Therefore, it is necessary to have a written arbitral agreement for the purpose of having a valid award.    

(II)           Conditions of Substance:  The conditions of substance required by articles 765 and 766 are the same as those required for the arbitral clause concerning the capacity of parties, the arbitral disputes and the designation of the arbitrators.  However with regard of the condition concerning the designation of the arbitrators, it is applied differently than in case of arbitral clause.  Moreover, article 766 adds a special condition for the arbitral agreement which is the determination of the subject-matter of the dispute.

     Since the first two conditions were discussed previously, we will discuss in the following the other two conditions concerning the designation of the arbitrators and the determination of the subject-matter of the dispute.            

1.     Determination of the subject-matter of the dispute:  Article 766 requires, under pain of nullity, the determination of the subject-matter of the dispute in the arbitral agreement.  It is obvious that the dispute should be specified in the arbitral agreement since such agreement is concluded after the dispute arises.  The parties at that time know their dispute and its nature, so it is easy for them to specify it in their agreement and to entrust the arbitrator to settle that particular dispute.  The arbitrator is obliged to limit himself to the settlement of that specified dispute; otherwise he will be sanctioned by the court if he exceeds the mission entrusted to him.  For this reason it is important to specify the subject-matter of the dispute sufficiently and clearly in the arbitral agreement to enable the court seizing with the appeal or enforcement of the award to check  whether the arbitrator exceeded his mission or not. 

     However, a question may arise in regard to incidental or auxiliary maters, demands or counter-claims; are they coming within the competence of the arbitrator?   It is well established that the competence of the arbitrator extents to all incidental or auxiliary matters and demands which are closely connected to the principal dispute.  Any other matters or demands may be admitted in arbitration if all the parties accept (or one requests and the other accepts) to settle them by the arbitrator, and this latter accepts them in his mission.  As regards counter-claims, they may be included within the mission of the arbitrator if their purpose is to obtain compensation.

2.     Designation of arbitrators:  Article 766 requires, under pain of nullity, the designation of arbitrator or arbitrators in persons or qualities, or the indication of the way to designate them.  This is the same condition required for arbitral clause; however, it is applied differently hereof.  In the arbitral agreement, the arbitrators should be appointed directly and immediately by the parties or the designated authority (institution or natural person), since the dispute has arisen and a settlement is needed.  Also it is required that the arbitrator accepts the mission entrusted to him, otherwise the arbitral agreement will be null and void.                

(B)        Effects of Arbitral Agreement     

         An arbitral agreement generates two effects.  The first is constitution of the arbitral tribunal; the second is the incompetence of state courts.  These two effects are the same effects generated by an arbitral clause.   Since these two effects were previously discussed when dealing with the arbitral clause, we are not going to repeat the same discussion hereby.

Section 3:  International Arbitration Agreement

     The Code of Civil Procedures distinguishes between an agreement in internal arbitration and an agreement in international arbitration.  It subjects each one to separate provisions.  This position is inspired by the French Law.  The provisions related to international arbitration agreement is characterized by their brevity and simplicity, and by the more freedom giving to the parties in choosing their arbitrators and the law to be applied on the merits of the dispute and on the procedures of the arbitration.

     The provisions related to international arbitration are found in articles 809 to 821.  Articles 809, 810 and 811 state the conditions of form and of substance which should be fulfilled by the international arbitration agreement.   These conditions are:

     

(A)  Conditions of Form

     The Code of Civil Procedures does not require a written form for an international arbitration agreement similar to that required for an internal arbitration agreement.  This position is dictated by the principle of liberalism in international arbitration favored by the Lebanese Law.  However, it is important to mention that article 814 of the same code requires for recognizing and executing an arbitral award issued by international arbitration the presentation of such award accompanied with an arbitration agreement.  And article 816 provides that an appeal of a decision granting recognition or the execution to an arbitral award of international arbitration is not acceptable without the existence of an arbitration agreement.  It seems as if there is a contradiction in this Code with regard of international arbitration agreement.  On one hand it does not require this agreement to be in a written form, and on the other hand it requires the existence of such agreement.  However, the matter is not as such.  The absence of a written agreement does not imply nullity of international arbitration agreement, since the proof for the existence of agreement is governed by the rules of private international law.  According to article 139 of the C.C.P the proof for existence of a legal act is governed by either the law of the country which is applied to its effects or the law of the country in which it was made.  The parties can provide in their legal act (agreement or contract) the law applicable to their legal act (the proper law of the contract), so this law is applied.  If the parties did not provide such a law, then the law of the place where the legal act was made (Lex loci actus) or has its effects (the place of its execution) is applied; the determination of such law will be done in accordance with the principle of significant connection known in private international law and in the Lebanese Law.  Accordingly, the absence of a written form for an international arbitration agreement does not imply its nullity under the Lebanese Law unless it is void or null under its applicable law. 

(B)   Conditions of Substance 

     The conditions of substance related to the capacity of the parties and the dispute capable to be arbitrated which are required for internal arbitration agreement are also required for international arbitration agreement, but they are governed by the rules of private international law.  Moreover, there is an indication which may be included in the international arbitration agreement; this indication is the designation of the arbitrators.

1.     The Capacity to conclude an international arbitration agreement:  For an international arbitration agreement to be valid, its parties should possess the capacity to conclude it.  The question of capacity to conclude an international agreement is considered a matter of personal status which is determined in accordance with the rules of private international law.  Private international law makes a distinction between general capacity (the power to enjoy and exercise rights at large) and special capacity (the power to perform a particular act).

     General capacity is governed either by the personal law (the law of nationality, the law of domicile or the law of residence) or the law of the place where the act was done (Lex loci actus).  According to the Lebanese rules of conflict of laws, the general capacity is governed by the national law.

     Special capacity is governed by the law governing the legal act.  With regard of the agreement of arbitration, the special capacity to conclude it is governed by the proper law of the contract.  Generally, the proper law of the contract is the law chosen by the parties (the law of choice), and this law will govern the special capacity.  However, if the parties failed to provide the law applicable to their agreement, then the arbitrator would make such choice.  The established rule gives the arbitrator the freedom either to choose the law of the seat of arbitration or the law which he deems to be the most appropriate.  According to article 813 of the C.C.P, the arbitrator applies the law chosen by the parties, otherwise the law he deems the most appropriate, and he, in all cases, will apply commercial customs.

     All the above rules are applicable to natural persons as well as private moral persons.  Notably, the Lebanese state as well as public moral persons have the capacity to conclude international arbitration agreement.  

2.     Disputes capable to be arbitrated:  For an international arbitration agreement to be valid, it should involve disputes capable to be arbitrated.  The Determination of disputes capable to be arbitrated is governed by the proper law of the agreement which is the law chosen by the parties, if they failed to do so, then the law chosen by the arbitrators.  This is the position adopted by the Lebanese Law.  Moreover, if the parties agreed on the Lebanese Law, then the provisions of this law determining the disputes which are capable to be arbitrated are applicable.

3.     Designation of arbitrators:  Article 810 of the C.C.P provides that it may be designated in the international arbitral agreement, directly of by reference to arbitration regulations, the arbitrator or arbitrators, or the way to designate them.  It is clear from this provision that this condition is not obligatory and not imposed under pain of nullity since the parties may or may not designate the arbitrator or arbitrators in their arbitral agreement.   Thus, the non-designation of the arbitrator or arbitrators or the way to designate them in the international arbitration agreement does not imply its nullity.

     Moreover, paragraph 2 of article 810 provides that if the international arbitration takes place in Lebanon or according to the Lebanese Code of Civil Procedures, then in case of any difficulties to appoint the arbitrator or arbitrators, the president of the court of first instance will make such appointment in accordance with the conditions laid down in article 774 of the C.C.P related to internal arbitration.  Notably for applying the rules of international arbitration, the Beirut court of first instance will have the jurisdiction in place of the court of the seat of arbitration taken place outside Lebanon.               

                                 

Chapter Five

The Arbitral Tribunal

     When the parties agree to settle their disputes by arbitration, they can refer them for settlement to either a sole arbitrator or an odd number of arbitrators (usually three arbitrators); both cases may be called arbitral tribunal.   In their agreement the parties must specify the method to appoint (nominate) the arbitrator or the arbitrators.  Such nomination may be made by the parties themselves or by an institution of arbitration designated by the parties.  Arbitrators are private judges entrusted by the parties or institution of arbitration to carry a particular mission for which he will be paid according to the terms of the agreement.  Arbitrators must possess certain qualifications to be nominated.  They are entitled to certain rights and subject to certain obligations.  If they fail to perform their obligations, certain means of recourse may be initiated against them.       

      In the following, we will deal with: The constitution of arbitral tribunal and the qualifications of an arbitrator; the rights and obligations of the arbitrator; and the means of recourse against the arbitrator.

Section 1:   The Constitution of Arbitral Tribunal  

     The parties must specify in their agreement the method to nominate the arbitrators and the constitution of the arbitral tribunal. Where they agree to refer their disputes to a sole arbitrator, they may together nominate this arbitrator or designate the institution (or the person) which can nominate him.  Where the parties agree to refer their disputes to three arbitrators (or an odd number of arbitrators), each party may nominate one arbitrator (or a number of arbitrators), and the third arbitrator (or the one to complete the required number) who will be the chairman of the arbitral tribunal may be nominated by either the two nominated arbitrators (or the nominated arbitrators) or by the designated institution.[11]   In case of any difficulty facing the nomination, the assistance will be requested from the president of the court of first instance in accordance with article 764 of the C.C.P, or from the designated institution in accordance with its rules.  This assistance can be requested in case of internal arbitration as well as in case of international arbitration.[12]

    The constitution of the arbitral tribunal is accomplished when the arbitrators accept the mission entrusted to them.  This acceptance must be in writing.[13] If there is no acceptance, then the arbitration agreement is considered to be null and void.[14]

     By accepting the mission entrusted to him by the parties, a contractual relationship will exist between them.  The arbitrator can not withdraw without a serious reason; otherwise he will be sanctioned to pay compensation to the injured party.[15]

     In order to be nominated, an arbitrator must be a natural person who has the full capacity to exercise his civil rights; if a moral person is designated then his mission will be to organize and administer the arbitration not to settle the disputes.[16]  A minor, an incapable major and a bankrupt person cannot be arbitrators.  In internal arbitration, capacity of the arbitrator is determined by the Lebanese Law.  In International arbitration, capacity is determined in accordance with the rules of private international law (the conflict or laws).

     With regard of nominating an arbitrator under the Lebanese Law, four questions may arise:

(1)       May a foreigner be an arbitrator?  A foreigner may be nominated an arbitrator, since the Lebanese Law does not impose any restriction concerning the nationality of the arbitrator.  Therefore, a foreign arbitrator may be nominated even in internal arbitration.

(2)       May a judge be an arbitrator? Article 47 of the Code of Judiciary Organization forbids a judge to perform any paid function.  This provision may imply that performing unpaid function is not forbidden.  Therefore, the judge may be nominated an arbitrator as far as he is not paid for his mission.  Article 375 of the C.C.P may support this proposition since it allows the judge to perform a conciliation mission which is considered within the scope of his job.  Nevertheless, this article may imply that it is not allowed for him to be an arbitrator since there is no explicit provision allowing him to perform arbitration mission similar to the provision allowing conciliation.  Whatever the arguments it is still up to the judicial decisions to settle this question.  Notably in France, a judge may be appointed an arbitrator; however he needs to obtain a special authorization from the concerned authority.  

(3)       May a civil servant be an arbitrator?  Article 15 of the Code of Civil Servants forbids civil servant from performing any commercial or industrial profession or any paid profession or craft, or performing any paid job degrading the dignity of public job.  This article explicitly does not allow a civil servant to perform any paid profession, so to be paid arbitrator is prohibited.

(4)      May an employee of private sector be an arbitrator?  An employee of a private sector can be an arbitrator if his employment contract does not forbid him to perform any job outside his employment.                         

Section 2:  Rights and Obligations of Arbitrator

     The acceptance of the mission by the arbitrator creates a contractual relationship between him and the litigants.  This contractual relationship generates rights and obligations (duties) for all the parties.  These rights and obligations are either legal or contractual in their origin.  The sources of these rights and obligations vary according to the kind of the arbitration.  In ad hoc arbitration, the contract appointing the arbitrators, the law applicable to this contract, the agreement of arbitration, the law applicable to this agreement and the law applicable to the procedures of arbitration constitute the sources which generate the rights and obligations of arbitrators and the litigants.  In institutional arbitration, the rules and regulations of the concerned institution constitute the sources which generate the rights and obligations of the arbitrators and the litigants.  Moreover, the codes of professional responsibility constitute additional sources for obligations imposed upon arbitrators.  Notably, the rights of one party are obligations on the other party.

     The failure of any party of his contractual obligations will subject him to certain penalties.  If a litigant fails his obligations, he will be sanctioned by a number of penalties, including the payment of damages to the injured party and to the arbitrators, the withdrawal of the arbitrator, the suspension of the processes of arbitration, and the annulment of the arbitration agreement.  If the arbitrator fails his obligations, he will be sanctioned by a number of penalties, including reprimand, admonishment, objection and replacement, suspension of his mission, annulment of arbitration agreement, annulment of the arbitral award, or/and payment of damages to the parties.

    As we mentioned above, the contractual rights and obligations of the parties are generated after the arbitrators accept the mission entrusted upon them.  However, there are certain pre-contractual obligations imposed on arbitrators by the national laws and the rules and regulations of arbitration institutions.

     Therefore, in the following we will deal with these rights and obligations throughout the various phases of arbitration:  The pre-contractual phase; the phase of constituting the arbitral tribunal; the phase of arbitration proceedings; the phase of arbitral award; and the post-award phase.

(A)  The Pre-contractual Phase

     The arbitrator proposed (a prospective arbitrator) for a future mission is under two important pre-contractual obligations, namely the following:

1.     He must disclose to the appointing party or authority any facts or circumstances which might reasonably be expected to cast doubt on his impartiality and independence.  This obligation is not limited to this phase but continues throughout all the phases of arbitration. 

2.     He must abstain from any detailed discussion of the merits of the case with any party alone.  Any discussion beyond generalities with any party alone will constitute a lack of independence and impartiality.  Also, this obligation must continue throughout the whole processes of arbitration.

          

(B)   The Phase of Constituting the Arbitral Tribunal

     After accepting the mission by the arbitrators, the contractual rights and obligations of the arbitrators, the litigants and the institution of arbitration will be implemented.  Once the arbitrator accepts the mission, he will be under a general obligation to carry out his mission and bring it to its conclusion; accordingly he is under the following specific obligations:

1.     He must not withdraw from his mission without a serious reason; otherwise he will be sanctioned to pay damages to the injured party.[17]

2.     He must participate in constituting the arbitral tribunal.  When the parties nominate an equal number of arbitrators and it is required from these arbitrators to complete the constitution of the arbitral tribunal by nominating the arbitrator who will be the chairman of this tribunal, they must do so without delay and with great care.             

(C)  The Phase of Arbitration Proceedings

     During this phase, the arbitrator must continue abstaining from any detailed discussion of the merits of the case with any party alone, and must reveal any new fact or circumstance which might reasonably be expected to cast doubt on his impartiality and independence.    Moreover, he should comply with the following obligations:

1.     He must exercise diligence in performing his mission.  He should ensure speedy and equitable arbitration. He should do his best to conduct the arbitration in such a manner that expenses do not mount up to unreasonable percentage of the interests at stake.  He should complete arbitration by delivering the award within the agreed or the legal time limit of the arbitration.  According to article 773 of the C.C.P, the time limit for the arbitrators to complete their mission is that agreed by the parties, otherwise it is six month from the date of acceptance by the last arbitrator.

2.     He must always be available and accessible to the litigants.  He should devote the time and attention that the parties may reasonably demand, taking into consideration the nature and the circumstances of the case.

3.     He must treat the litigants in a fair, equitable and impartial manner, and respect the principles of debate and defense.

4.     He must regularly inform the litigants or/and the institution of arbitration about the progress made and the foreseen events, acts and procedures.

(D)  The Arbitral Award Phase

     If the arbitration is performed by other than a sole arbitrator, then the arbitrators are under the following obligations:

1.     All the arbitrators must participate in the deliberations that precede the drafting of the award and must keep them secret.[18]

2.     The arbitrators must deliver an award.  They are obliged to find a compromise in case of differences between them regarding their opinions about the case.  It is inadmissible for arbitration to be concluded without delivering an award.

3.     The arbitrators must deliver the award in writing and signed by all of them or by a majority of them.[19]

(E)   The Post-award Phase

     After delivering the award, the arbitrators will be still, during the time limit of the arbitration, under the following obligations:

1.     Notification and registration of the award.

2.     Interpretation of the award.

3.     Completing the award in case of missing the settlement of any demand.

4.     Rectification of errors (of calculation, or of material or typographical errors).

     Notably, beyond the time limit of the arbitration, the mission to interpret the award or to correct it is entrusted to the concerned state court.

     In return to all the obligations imposed upon the arbitrator mentioned above, the arbitrator has certain rights which constitute obligations imposed upon the litigants and the institution of arbitration.  During the processes of arbitration, the litigants should: (1) exercise reasonable diligence;              (2) cooperate in good faith with the arbitrators; (3) produce the required documents; (4) provide evidence; (5) give information; (6) make financial advances for the arbitrators for the expenses.  The institution of arbitration charged to organize the arbitration is under the obligations to help the arbitrators in administrative matters.  The failure of the litigants or the institution of arbitration to comply with their obligations will justify the suspension of the arbitration by the arbitrators, or the withdrawal or the resignation of the arbitrator from his mission, as well as the payment of damages to the arbitrator.

     After delivering the award, the arbitrator will have the right to his fees and to his expenses.  He may delay notification of the award until the parties pay him his fees and all expenses incurred by him; this right is recognized by national laws and regulations of arbitration.

Section 3:  Recourses against the Arbitrator          

     The failure of the arbitrator to comply with any of his obligations may subject him to certain sanctions.  The parties can bring a claim before the court or institution of arbitration requesting its intervention to sanction him and impose penalties upon him.   The recourses which the parties are entitled to against the arbitrator, in person, under the Lebanese Law are recourse of challenge (recusation) and recourse of replacement.  In addition the parties are entitled to request the annulment of the award delivered by the said arbitrator.

(A)           Recourse of Challenge (recusation)

     The dismissal of an arbitrator is not allowed except by the agreement of the parties concerned.  However, the  party who considers that the arbitrator failed any of his obligations can challenge him before the competent court in case of ad hoc arbitration, or the competent authority of arbitral institution in case of institutional arbitration.

1.     Ad hoc arbitration: Article 770 of the C.C.P provides that the request of challenge against the arbitrator can be brought before the court of first instance of the place of the seat of arbitration agreed upon by the parties, otherwise the Beirut court of first instance.  This request should be presented within fifteen days from the date the party requesting the objection has notified the appointment of the arbitrator or the date of rise of the reason for challenge.  The grounds for challenge are the same as those admissible against judges which are listed in article 120 of the C.C.P.  The decision of the court in this regard is subject to no recourse.

2.     Institutional Arbitration:  In case of institutional arbitration, the request of objection can be brought before the competent authority designated by the said institution in accordance with its rules and regulations.

(B)            Recourse of Replacement

     Incidents may happen after the appointment of the arbitrator or the constitution of arbitral tribunal that affect the continuation of the process of arbitration.  Examples of such incidents are the resignation of the arbitrator, his abstention, his death, and the acceptance of the request of challenge.  These incidents necessitate the intervention of the court in case of ad hoc arbitration or the institution of arbitration in case of institutional arbitration to replace the arbitrator or arbitrators and to ensure the continuation of arbitration.

1.     Ad hoc Arbitration:   In case of any of the incidents mentioned above both parties or any one of them can request the president of court of first instance to intervene and replace the arbitrator.

2.     Institutional Arbitration:  All institutions of arbitration provide rules allowing the replacement of arbitrator in case of his death, the acceptance of his resignation, the acceptance of a

3.     challenge against him or the request of all the parties.  Also these rules allow the competent authority in the institution to replace the arbitrator at its own initiative when it decides that he is prevented de jure or de facto from fulfilling his functions, or that he is not fulfilling his functions in accordance with its rules or within the prescribed time limits.

(C)           Recourse for Annulment of the Award

     Among the grounds for the annulment of arbitral award enumerated in article 800 of the C.C.P is the arbitrator exceeded his mission, failed to respect the litigants’ right of defense, violated in his award any rule related to public policy, or not including in his award the required indications.  In these cases, any party can bring a request to annul the arbitral award before the court of appeal of the place of the seat of arbitration.                         

             

    

Chapter Six

The Arbitral Proceedings

     The arbitral proceedings start when both or any one of the parties refers the dispute to the arbitrator or arbitrators.  These proceedings must take place within the time-limit stipulated in the arbitration agreement or the six month period calculated from the date of acceptance of the mission by the last arbitrator.  This agreed or legal time-limit can be extended either by the agreement of the parties or by the decision of the president of the court of first instance upon the request of any one of the parties or the arbitral Tribunal.[20]  

     The arbitrators are required to conduct the arbitral proceedings in accordance with the procedures designated by the parties or the arbitral institution.  They are also required to apply the law designated by the parties or the arbitral institution on the merits of the case.

     It may happen that during the course of arbitral proceedings certain incidents arise affecting these proceedings and necessitate their suspension or termination.  Because of this fact, we will deal in the following two sections with the course of arbitral proceedings and the suspension or termination of arbitral proceedings.

Section 1:  The Course of Arbitral Proceedings       

     The proceedings of arbitration in Lebanon are governed by articles 775 to 789 of the C.C.P.  These articles deal with the rules of procedures and of substance to be applied by the arbitrators, and the conduct of the proceedings.

(A)  The Applicable Rules of Procedures and of Substance

     According to article 775 of the C.C.P the parties may agree in their arbitration agreement that the arbitration is ordinary (according to law) or absolute (as amiable compositeur).   In case of any doubt about the type of the arbitration, it is considered to be an ordinary arbitration.[21]   The rules of procedures and of substance to be applied by the arbitrators differ according to the type of arbitration agreed by the parties.

     However, whatever the type of arbitration, the arbitrators are required to respect certain principles which are considered to be fundamental principles of civil procedures.  Principles such as the right of defense, the freedom of debate, the equal treatment of the parties, and the reasoning of the award are fundamental principles of civil procedures which neither the arbitrators nor the parties can waive or release themselves from applying them. These principles are related to public policy or to litigants’ rights.    The failure to respect any of these principles will nullify the award.        

1.     Ordinary Arbitration (Arbitration According to Law): In ordinary arbitration, the arbitrators must apply the rules of Lebanese civil procedures except those which are incompatible with the procedures of arbitration.[22]  Nevertheless, in ordinary arbitration the parties may waive the arbitrators from applying the ordinary civil procedures or some of them except those which are related to public policy, fundamental principles of civil procedures, certain litigants’ rights or principles of arbitration.   Such a waiver must be written explicitly in the arbitration agreement or in a separate agreement.

     The arbitrators, in ordinary arbitration, must also apply the rules of Lebanese law on the merits of the case.  They must apply these rules and interpret them in the same manner as done by the court of law.

     In case of international arbitration, under article 811 of the C.C.P the arbitrator must apply the rules of procedures chosen by the parties in their agreement which are either the regulations of particular arbitral institution or the rules of civil procedures of particular country.  If the parties have not chosen such rules, then the arbitrator will apply the rules of procedures which he deems appropriate, the rules of procedures of particular country, or regulations of arbitral institution.  If the international arbitration is subject to the Lebanese law, then the rules related to internal arbitration are not applicable except if there are no relevant conventions, however due regard must be given to articles 811 and 812.  With regard to the law applicable on the merits of the dispute, the arbitrator must apply the law chosen by the parties, otherwise the law which he deems appropriate.  However, in all cases the arbitrator must take into account the commercial customs.[23]

2.     Absolute Arbitration (Arbitration as Amiable Compositeur):  Article 775 allows the parties to a dispute to settle their dispute by an arbitrator (or arbitrators) acting as amiable compositeur.  Such an agreement must be written explicitly in the arbitration agreement or in a separate agreement.  In this case, the arbitrator is waived from applying the rules of law and the rules of civil procedures in favor of the principle of equity (ex aequo et bono = the principle of fairness and justice = natural justice).    However, this waiver does not include those rules of law related to public policy, the fundamental principles of civil procedures particularly those related to the right of defense and the reasoning of the award, and the principles of arbitration.

     The question which arises in this case is whether this waiver is facultative or obligatory, i.e., is it a matter of free choice for the arbitrator or of obligation?  It is well established by judicial decisions and jurisprudence that the waiver given to the arbitrator by the parties is an authorization to abate the strict application of the positive law in favor of the principle of equity.  Although the arbitrator is released from applying the rules of law, he is given a full freedom to apply the rules or principles that he deems appropriate for settling the dispute whether they are related to equity or law.

     When the parties agree that the arbitrator acts as amiable compositeur, they renounce their right to appeal the arbitral award unless they reserve such right explicitly in the arbitration agreement.  Then the court of appeal will deal with the case also as amiable compositeur.[24]

     In case of international arbitration, the arbitrator can act as amiable compositeur if the parties entrusted him to do so in their arbitration agreement.[25]

(B)   The Conduct of Arbitral Proceedings

     In case of arbitration by more than a sole arbitrator, when all the arbitrators accept their mission and the arbitral tribunal is constituted then the arbitral proceedings start.  The arbitrators should conduct the arbitral proceedings according to the following.

1.     Determination of the place of arbitration:  The first question needs to be settled before the starting of the arbitral proceedings is the determination of the place (seat) of the arbitration.  The place of arbitration should be the place determined by the parties in their agreement; however in case of their failure, the arbitrators must determine it. The determined place may be any place the arbitrators deem appropriate, having regard to the circumstances of the arbitration.

     The place of arbitration is very important because it permits the determination of the court of law having the jurisdiction to intervene in case of any obstacles facing the arbitral proceedings, such as a challenge to an arbitrator, a replacement of an arbitrator and the extension of the lime limit of the arbitration.  In addition it is important for permitting the determination of the court competent to grant the execution order to the arbitral award.

2.     Appearance ad representation of the parties:  Once the place of arbitration is determined, the arbitrators, in ad hoc arbitration, must notify the parties (litigants) to present their demands.  In institutional arbitration, notifications and all other administrative procedures are performed by the institution.

     The parties are required, with regard of all their pleadings, communication and documents, to supply a number of copies sufficient to provide one copy for each party and each arbitrator (in case an institution arbitration an extra copy for the secretariat of the institution)  

     The representation of the parties before the arbitrators differs according to the type of arbitration whether arbitration according to law or as amiable compositeur.  Article 378 of the C.C.P requires the litigants to be represented before the court of law by attorneys in cases having value exceed 300.000 Lebanese pounds or having no fixed value.  This same rule also applies to arbitration, particularly arbitration according to law.  However in case of arbitration as amiable compositeur, this rule is not obligatory.

3.     Preparation of the minutes and the terms of reference:  Since arbitrators have no judiciary assistants as judges of the court of law have, they are required to prepare the minutes of the case.  At the first meeting, the arbitrator should prepare the minutes of the case in the presence of the litigants or their representatives.  In the minutes, the arbitrators should confirm the constitution of the arbitral tribunal, determine the timetable for the proceedings, call upon the litigants to present their statements of claim and defense, and determine the way of their notifications.

     Following the exchange of the written statements of claim and defense, the practice has developed in civil law countries is that the  arbitrators with the participation of the litigants draw up “the terms of reference”. “The terms of reference” is a document containing the names of the litigants, the names of the arbitrators, the place of arbitration, the subject matter of the litigation, the litigants’ respective claims, the legal issues to be settled by the arbitrators, the rules of procedures to be followed in the proceedings, and the law to be applied to the merits of the case.  It is required that this document be signed by the litigants and the arbitrators.  The significance of “the terms of reference” is that it defines the questions which the arbitrators must settle; the arbitrator must limit themselves to these questions.  Once this document is finalized and signed, the parties can no longer able to modify their claims, unless by their mutual agreement.

4.     Presentation of evidences and documents:   The arbitrators can at any time during the proceedings request the parties to present the necessary evidences and documents.[26]  The parties are obliged to comply with such requests.  However, the arbitrators, because they have no power to force the parties to comply with their request, can in case of non-compliance with any of their requests take note of this and make their own conclusions in this regard.

5.     Hearing of the parties and the witnesses:  To ensure freedom of debate and the right of defense of the parties, the arbitrators can at any time demand the parties to appear before them for hearing.  The parties may appear in person or through their duly authorized legal representatives.

      Also, the arbitrators can demand the hearing of third persons as witnesses either at their own initiative or at the request of any of the parties or both of them.   If the request to hear a witness came from the parties, the arbitrators may refuse such request if they deem that such a witness has nothing to add to the case.   Witnesses can be notified to appear before the arbitrators either by preliminary award, by a direct communication or by the minutes. Witnesses are heard and testify without being sworn (under oath).  They must be questioned by the arbitrators and by the parties or their legal representatives.  If a witness refuses to appear before the arbitrators or refuses to answer, the arbitrators can recourse to the competent court of law to impose on him the sanctions provided by the law.[27]   The arbitrator can also ask the court of law to issue judicial summons.                

6.     Investigation and hearing experts:   The arbitrators are required to investigate the case.  Investigation can be carried out either by all the arbitrators, any of them, or experts appointed by them or by the parties.[28] They can take all the necessary measures for investigation.  They can carry verification, receive reports and hear experts.  Hearing of experts should take place in the presence of the parties, or in their absence provided they have been duly summoned.  Experts can be questioned by the arbitrators and the parties or their representatives.

     In particular, the arbitrators have the power to verify handwriting in accordance with the provisions of articles 174 to 178 of the C.C.P if one of the litigants denies authorship or signature of a document attributed to him.[29]  This verification can be done by the arbitrators themselves or by experts, and they can hear witnesses with this regard.  However if there is a plea for a forgery of such document, then the arbitrators must suspend the arbitral proceedings pending the verdict by the competent court of first instance.[30]

7.     Interim and conservatory measures:  Under article 789 of the C.C.P, the arbitrators, when requested by any of the parties, can order by preliminary awards any necessary interim or conservatory (preventive) measures needed to preserve the rights of the litigants and preventing any harm to them, similar to the measures which can be ordered by the judge of summery procedures pursuant to article 589 of the C.C.P.[31]  Such measures may include placing of seals, making an inventory for the assets, judicial seizure and sale of the perishable goods.

8.     Termination of the proceedings:  When they are satisfied that all what are needed for settling the case have been completed, the arbitrators must declare the closing of the proceedings and fix the date for deliberating the case and pronouncing the arbitral award.[32] The date should be within the time limit agreed by the parties, otherwise the legal time limit which is six months counted from the date of acceptance of the mission by the last arbitrator. After this declaration, the presentation of any documents, evidences, or requests are not permitted. The arbitrators must concentrate on deliberating and delivering their award. 

     However, any reopening of the proceedings must be based on justified reasons, and must take place within the time limit of the arbitration.  An extension to the time limit may take place pursuant to the agreement of both parties, or to the decision of the president of the court of first instance.[33]

Section 2:  Suspension or Termination of Arbitral Proceedings  

     Incidents may arise during the arbitral proceedings resulting in the interruption or the termination of the arbitration proceedings.

(A)  Interruption of Arbitral Proceedings

     There are certain incidents if they occur during the arbitral proceedings will result in the interruption of such proceedings and consequently of the time limit of the arbitration.[34]  Incidents may be related to matters outside the jurisdiction of arbitration or to other matters.  Arbitration will resume and the time limit will continue after the delivery of the verdict by the competent court or the disappearance of the cause of the interruption.  These incidents are the following.

1.     Recourse to challenge the arbitrator:  If any of the parties finds during the arbitral proceedings that the arbitrator does not give guarantee of impartiality and independence, he can challenge the arbitrator before the court of first instance. The arbitral proceedings as well as the time limit of the arbitration will be suspended pending the verdict.  If the verdict comes not accepting the challenge, then the arbitral proceeding will resume and also the time limit of the arbitration.  If the verdict comes accepting the challenge, then this will result in the termination of arbitration as we will see in the subsection (B) below.

2.     Penal offenses or procedures:  If during the arbitral proceedings the arbitrators face a penal offence or initiation of penal procedures connected to the dispute under their dealing, they can ignore it if they find that it will not affect the outcome of their case; but if they find that it does, then they must suspend the arbitral proceedings pending the delivery of the verdict by the competent court.

3.     Matters of Public administration:   If the arbitrators face            a matter related to public administrative law which fall under the jurisdiction of the Council of State, and which will affect the outcome of their case, they must suspend the proceedings pending the verdict by this Council.

4.     Matters outside the domain of arbitration:  If the arbitrators face a matter outside the domain of arbitration, such as a matter related to personal status, human rights, individual employment contract or forgery of a document attributed to one of the litigants, they must suspend the proceedings pending the delivery of the verdict by the competent court.

5.     The death of one of the litigants when the case is transferable:  If the heirs of the deceased litigant are majors, the suspension of the proceedings will last till the distribution of the inheritance.  If they are minors or incapable majors, the suspension of the proceedings will last till the appointment of a guardian.

6.     The loss of one of the litigant his capacity to litigate:  In this incident the proceedings will be suspended till the appointment of a guardian.

7.     The termination of the function of the legal representative of the litigant.

8.     The agreement of the litigants to suspend the proceedings.                                                                       

(B)   Termination of Arbitral Proceedings

     With due regard to the special agreement of the litigants, arbitration terminates by the following reasons:[35]

1.     The dismissal of the arbitrator.

2.     The Death of the arbitrator.

3.     The incapacity of the arbitrator to perform his mission.

4.     The loss of the arbitrator of his civil rights.

5.     The abstention of the arbitrator

6.     The successful challenge against the arbitrator.

7.     The end of the time limit of the arbitration.

8.     The death of one of the litigants when the case is not transferable.

9.     The agreement of the litigants.                                                              

     

Chapter Seven

The Arbitral Award

      When the statements of claims and defenses, the presentation of evidences, the exchange of documents and the necessary investigations are finished, the arbitral tribunal considers that the arbitral hearings are completed.  At that time the arbitral tribunal must fix the date for deliberating and pronouncing the arbitral award, and inform it to the litigants or their representatives either in writing in the minutes or orally. 

      The arbitral award is the decision issued by the arbitral tribunal, at the end of the arbitral proceedings, settling the dispute which the parties referred to it.  In its nature, substance, form and effects, it is similar to the judgment pronounced by the court of law.

     The arbitral award must satisfy certain conditions related to form and substance to be valid, to have its effects and to be executed.  In the following we will deal with the conditions for the validity of arbitral award, its effects, and its execution.

Section 1:  Conditions for the Validity of Arbitral Award   

     The arbitral award is judicial in its nature.  It is valid if satisfied the following conditions of form and of substance.

(A)  Conditions of form

       According to articles 788 and 791of the C.C.P, and by referring to articles 527, 528 and 529 of the same code, the award must satisfy the following conditions of form.

1.     The arbitral award must be delivered after deliberation:  The arbitral award must be pronounced after a deliberation held by the arbitral tribunal.  In case there are several arbitrators, they must all deliberate the case.  Deliberation must be held in private.  This condition is imposed under pain of nullity.  Confidentiality is required even after pronouncing the award.  Violation of confidentiality after the pronouncement of the award will not result in the nullity of the award but allows the injured party to claim damages.

2.      The arbitral award must be delivered by unanimous or majority vote:   This condition is always satisfied because there are an odd number of arbitrators constituting the arbitral tribunal.

3.     The arbitral award must be signed at least by the majority of the arbitrators:  The arbitral award must be signed by all the arbitrators; however, if any arbitrator refuses to sign it, then the majority must mention this fact in the award and sign it;  it is not necessary to mention in the award the reason for such refusal.  The award will have the same effect as if it has been signed by all.  

4.     The time of pronouncing the arbitral award must be within the agreed or legal time limit of the arbitration:  This condition is imposed upon pain of nullity.

     

(B)    Conditions of Substance            

     Article 790 of the C.C.P provides that the arbitral award must contain the following.

1.     The names of the arbitrators:  The award must contain the names of the arbitrators pronouncing it.  This indication enables the verification whether these arbitrators are the same ones who are appointed by the parties to settle their dispute.  The failure to mention these names entails the annulment of the arbitral award.

2.     The place and date of the arbitral award:   The place where the award is delivered is important because it enables the determination of the court of law having the jurisdiction to grant the enforcement order to it or to hear appeal or annulment request against it.  However, the failure of mentioning this place does not mean nullity of the award since it can be substituted by the place where the arbitral tribunal made its deliberation.

     The date of the arbitral award is required to confirm that the arbitrators have respected the time limit of the arbitration and delivered the arbitral award within it.  The failure to mention this date entails the annulment of the award.

3.     The names of the litigants, their denominations and the names of their legal counsels:  These indications are not required under pain of nullity.   If they are needed, one can refer to the arbitration agreement.

4.     Summary of litigant’s facts, claims, demands and evidences:  This summary is required to enable the verification whether the arbitrators have settled all the issues submitted to them, and have not exceeded the mission entrusted to them.  The failure of these indications entails the nullity of the arbitral award.

5.     The reasons for arbitral award:  The arbitrators must justify their arbitral award, so the arbitral award must be founded and reasons given.  This condition is required under pain of nullity because it is a matter of public policy.  It is required for all types of arbitration whether according to law or amiable compositeur.  Reasons must exist, but not necessary to be convincing.  However, the Lebanese Law makes a distinction between internal arbitration and international arbitration not according to the Lebanese Law.  While this condition is applied to internal arbitration and international arbitration according to Lebanese Law, it is not applied to other international arbitration.  The lack of reasons in international arbitral award does not by itself mean it is contrary to the Lebanese public policy.  This award must be judged in accordance with the law of procedures applied to arbitration; if this law requires such reasons, then the award is null and void.  Moreover, if the lack of reasons hides a violation of the Lebanese public policy, then the award is null and void.

6.     The Summing up:  It is required under pain of nullity that a summing up must follow the reasons of the award.  The summing up is the summery of settlement of legal issues.

Section 2:  Effects of Arbitral Award                     

     The arbitral award is judicial in its nature.   It has effects similar to that the judgment by the court of law has.  As soon as it is delivered, the arbitral award will have the following effects.

1.     The authority of res judicata:  Article 794 provides that from the time of its pronouncement, the arbitral award has the authority of res judicata with regard of the dispute that it has settled.   This is the same effects the judgment of the court of law has under article 556 of the C.C.P.   This authority is relative since it is limited to the concerned litigants and to the case it has settled.  It is applied to all arbitral awards whether of internal, foreign or international arbitration.[36]

2.     Discharge of the arbitrators:  Paragraph 1 of article 792 of the C.C.P provides that by delivering the arbitral award, the arbitrator is no longer seized with the case.  However, he is still has the authority to interpret the award, correct mistakes or omissions, and complete the award in case he overlooked the settlement of any demand; this is the same authority the judge of law has under articles 560 to 563 of the C.C.P.  Such authority is not permitted except within the time limit of arbitration; after the time limit the authority may be exercised by the competent court of law.

3.     Confirming and declaring the invoked rights:  The most important effect of the arbitral award is the confirmation and declaration of the rights invoked by the litigants or one of them.  This is the same effect the judgment of the court of law has under article 559 of the C.C.P.  The declared rights by the arbitral award are expired after ten years from the date of the delivery of the award; this is the same period applicable to the rights declared by the judgment of the court of law under article 558 of the C.C.P.

Section 3:   The Execution of Arbitral Award    

     Although an arbitral award has effects on the litigants who are bound by it, it does not have by itself executive force which the judgment by the court of law has.   An execution order from the competent president of the court of first instance is required for the execution of an arbitral award.

     The parties are required to comply with the award and execute it voluntarily.  However, it may happen that a party may refuse to execute it.  Thus the other party has the right to make recourse to the president of the court of first instance for granting an execution order to enable the execution of the arbitral award.  The arbitral award can not be executed without an execution order affixed to it.

     Since the Lebanese Law makes a distinction between internal arbitral award, arbitral award delivered abroad or by international arbitration outside Lebanon and international arbitral award delivered in Lebanon with regard of their execution in Lebanon, we will deal with them separately in the following.

(A)  Execution of Internal Arbitral Award   

     Article 793 of the C.C.P provides that in order to give the execution order to an internal arbitral award, one of the arbitrators or the most hastened litigant must submit the original arbitral award accompanied by a certified copy of the arbitration agreement to the clerk of the competent court of first instance.  The copy of arbitration agreement must be certified by the arbitrators, the competent official authority (public notary) or the clerk of the court.  The clerk of the court must draw up a minutes to confirm such submission and its date.   Notably, the Lebanese Law does not put any time limit for resorting to such recourse for execution order.  The parties can resort to this recourse at any time.

     According to articles 795 and 796, the execution order is granted by the president of the court of first instance after the examination of the award and the arbitration agreement.  The execution order is affixed to the original arbitral award and to the original presented by the party requesting the execution order which will be returned to him at once.

     Paragraph 2 of article 796 of the C.C.P provides that the decision refusing the execution order must include the reasons for such refusal.  Such refusal is not possible except for one of the annulment reasons provided in article 800 of the C.C.P.  It is clear from this provision that the president of the court of first instance should not examine the arbitral award in depth, but simply should verify that it is not subject to annulment.

     The decision to grant the execution order to an arbitral award is not subject to any recourse.[37]  However, the decision refusing the execution order is subject to appeal within thirty days from the date of its notification; in such a case, the court of appeal, upon the request of the litigants, can examine the reasons which those can plead against the arbitral award by means of appeal or of annulment.[38]  Notably, the recourse of appeal or annulment of the arbitral award implies with regard of the litigants before the court of appeal the appeal against the decision granting execution order or releasing the competent judge from issuing such decision.[39]

     Article 797 provides that the rules of hastened execution are applied to arbitral award.   In case of recourse of appeal or of annulment, the president of the court of appeal to which the recourse is submitted has the authority to grant the execution order to the arbitral award with hastened execution.  The court of appeal should decide the hastened execution in the circumstances and according to the conditions provided in article 575 of the C.C.P.       

     If the dispute, the subject of arbitration, falls under the jurisdiction of the administrative judiciary, the execution order is granted by the president of the Council of State.   If the order is refused, appeal may be brought before the Council of Reclamation at the Council of State.[40]

(B)   Execution of Arbitral Award Delivered Abroad or by International  Arbitration outside Lebanon      

     According to article 814 of the C.C.P an arbitral award delivered abroad or by international arbitration outside Lebanon may be recognized and granted execution order if the person pleading it establishes its existence and that it is clearly not contrary to the international public policy.  The existence of the arbitral award can be established by presenting the original award accompanied by the arbitration agreement or copies of these documents certified by the arbitrators or any competent authority.  If these documents are written in foreign language, it must be translated by sworn translator.  Article 815 of the same code provides that the provisions of articles 793 to 797 (related to the execution of internal arbitral award) are applied to the arbitral award delivered abroad or by international arbitration.

     According to articles 816 to 818 of the C.C.P the decision refusing or granting recognition and execution order of an arbitral award delivered abroad or by international arbitration outside Lebanon is subject to appeal within thirty days from the date of its notification.  In case of a decision of granting recognition and execution order, appeal is not admissible except on the grounds stated in article 817 of the same code.  These grounds are the following:

1.     The arbitral award was delivered without an arbitration agreement or on the ground of an agreement that was void or had expired.

2.     The arbitral award was delivered by arbitrators not appointed according to law.

3.     The arbitral award was delivered in exceeding the mission conferred upon the arbitrator or arbitrators.

4.     The arbitral award was delivered without respecting the litigants’ right of defense (due process of law).

5.     The arbitral award violated a rule related to international public policy.

(C)   Execution of International Arbitral Award Delivered in Lebanon     

     An international arbitral award delivered in Lebanon is granted execution order according to the provisions of articles 793 to 797 of the C.C.P (related to the execution of internal arbitral award).  The decision granting the execution order is not subject to any recourse; however, the decision refusing execution order is subject to appeal similar to an internal arbitral award.  

Section 3:  Means of Recourse against Arbitral Award

     Generally, the means of recourse, under the Lebanese Law, against a decision issued by a court of law at the first instance are opposition by the parties (litigants), opposition by a third party, retrial and appeal.  With regard to arbitration an arbitral award is subject to all these means of recourse except opposition by the parties (litigants); opposition by the litigants is excluded by article 798 of the Code of Civil Procedures.  An arbitral award is subject to the following means of recourse:

(A)  Recourse  of Opposition  by a Third Party

     According to paragraph 2 of article 798 of the C.C.P, a recourse of opposition by a third party against an arbitral award is admissible before the court of law having the jurisdiction if there is no arbitration, taking into consideration the provisions of paragraph 1 of article 681 of the C.C.P.  This opposition is admissible on the grounds and in accordance with the relevant provisions of the C.C.P. [41]

(B)   Recourse of Retrial

     According to article 808 of the C.C.P, recourse for retrial against an arbitral award (in internal or international arbitration taken place in Lebanon or according to the Lebanese Law) is admissible on the grounds and in accordance with the provisions of the C.C.P. related to retrial of judgments of courts of law.[42]   Retrial should be presented before the court of appeal within which the arbitral award was delivered.  The decision of the court of appeal in this regard is subject to recourse of cassation and of opposition by a third party.        

(C)  Recourse of Appeal against Arbitral Award

     Paragraph 1 of article 799 of the Code of Civil Procedures provides that arbitral award  (in internal or international arbitration taken place in Lebanon or according to the Lebanese Law) is subject to appeal unless the litigants renounce such right in their arbitration agreement.  Paragraph 2 of the same article provides that an arbitral award delivered by amiable compositeur is not subject to appeal unless the litigants expressly reserved such right in their arbitration agreement; in this case the court of appeal will consider the case as amiable compositeur.

    According to articles 802 and 804 of the Code of Civil procedures, recourse of appeal can be brought before the court of appeal of the place where the arbitral award is delivered at any time after its delivering, and in accordance with the rules and procedures determined before the court of appeal.  However, appeal is not admissible after the lapse of 30 days of notification of the decision granting execution order to the arbitral award.

     The decision rendered by the court of appeal is subject to recourse of cassation.  However, the arbitral award delivered by amiable compositeur is not subject to cassation unless the court of appeal annuls such award, in this case the recourse of cassation against this decision is limited to the grounds of annulment stated in article 800 of the C.C.P (mentioned below).

(D)  Recourse of Annulment of Arbitral Award                 

     Article 800 of the Code of Civil Procedures provides that even if the litigants renounce appeal, it is still possible to annul the arbitral award (in internal or international arbitration taken place in Lebanon or according to the Lebanese Law) despite any agreement to the contrary by the litigants.  Recourse of annulment is possible on the following grounds:

1.     The arbitral award was delivered without an arbitration agreement or on the ground of an agreement that was void or had expired.

2.     The arbitral award was delivered by arbitrators not appointed according to the law.

3.     The arbitral award was delivered in exceeding the mission conferred upon the arbitrator or arbitrators.

4.     The arbitral award was delivered without respecting the litigants’ right of defense (due process of law).

5.     The arbitral award did no contain all the compulsory indications related to litigants’ demands and supporting reasons and means, to the names of arbitrators, to the reasons, summing up and date of the award, and to signatures of arbitrators.

6.     The arbitral award violated a rule related to public policy.

     According to articles 801 to 804, the recourse of annulment can be brought before the court of appeal of the place where the arbitral award is delivered.  As in case of an appeal, the recourse of annulment can be brought at any time after delivery of the arbitral award, or within 30 days from the date of notification of the decision granting execution order to the arbitral award.  Investigation and entertaining the recourse of annulment are made in accordance with the rules and procedures determined before the court of appeal.   The decision rendered by the court of appeal is subject to recourse of cassation.  If the arbitral award had been delivered by amiable compositeur, it would not be subject to cassation unless the court of appeal annuls such award; in this case the recourse of cassation against this decision is limited to the grounds of annulment.  When the court of appeal annuls the arbitral award, it should deal with the case within the limit of the mission of arbitrators unless the litigants agree otherwise.

Selected Bibliography

International Conventions

-         Amman Arab Convention on Commercial Arbitration of 1987.

-         The European Convention for International Commercial Arbitration of 1961.

-         The New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

-         The UNCITRAL Arbitration Rules of 1976.

-         The UNCITRAL Model Law on International Commercial Arbitration of 1985.

Rules and Regulations of Institutional Arbitration

-         Rules of Arbitration of the International Chamber of Commerce.

-         Rules of London Court of International Arbitration.

-        Rules of Conciliation and Arbitration of Beirut Chamber of Commerce and Industry.

The Lebanese Codes

-         The Lebanese Code of Civil Procedures of 1983.

-         The Lebanese Code of Commerce of 1943.

-         The Lebanese Code of Judiciary Organization of 1983.               

-         The Lebanese Code of Obligations and Contracts of 1932.

Books

-         Barceló, J.J., Enjoining Foreign Litigation and Arbitration, Cornell University Press, New York 2004.

-         Binder, P., International Commercial Arbitration in UNCITRAL Model Law Jurisdiction, Sweet & Maxwell, London 2000.

-         Born, G.B., International Commercial Arbitration, 2^nd ed., Kluwer, 2009.

-         Briggs, A., The Conflict of Laws, Oxford University Press, Oxford 2002.

-         Broches, A., Commentary on the UNCITRAL Model Law on International Commercial Arbitration, Kluwer, 1990.

-         Comair-Obeid, N., Arbitration in Lebanese Law, Delta, Beirut 1999.

-         David, R., Arbitration in International Trade, 2^nd ed. Kluwer, 1985.

-         Derains, Y. and Schwartz, E.A., A Guide to the New ICC Rules of Arbitration, Kluwer, 1998.

-         El-Ahdab, A.H., Arbitration, 4 vols. (In Arabic), Naufal, Beirut 1990.

-         --------------------, Encyclopedia of Arbitration, 2 vols. (In Arabic), Dar Al Maaref, Beirut 1998.

-         El-Ahdab, A.H. and El-Ahdab, J., Arbitration with the Arab Countries, 3^rd revised and expanded ed., Kluwer, 2011.

-         Fouchard, P., Gaillard, E., Goldman, B. and Savage, J., International Commercial Arbitration, Kluwer, 1999.

-         Gaillard, E., Legal Theory of International Arbitration, Martinus Nijhoff Publishers, Leiden 2010.

-         Holtzmann, H. and Neuhaus, J., A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer, 1989.

-         Lew, J., Mistelis, L. and Kroll, S., Comparative International Commercial Arbitration, Kluwer, 2003.

-         Moses, M.L., The Principles and Practices of International Commercial Arbitration, Loyola University, Chicago 2008.

-         Redfern, A., Hunter, M. and Smith, M., Law and Practice of International Commercial Arbitration, 4^th ed., Sweet & Maxwell, London 2004.

-         Saleh, S., Commercial Arbitration in the Arab Middle East: A Study in Shari’a and Statute Law, Graham & Trotman, London 1985.

-         Wehbe, H., Enforcement of Interim Measures in International Arbitration, Sader Publishers, Beirut 2006.   

Web Sites

-         Association for International Arbitration:  www.adr.org

-         International Court of Arbitration - International Chamber of Commerce:  www.iccwbo.org

-         International Council for Commercial Arbitration:  www.arbitration-icca.org

-         Kluwer Arbitration:  www.kluwerarbitration.com

-         The London Court of International Arbitration:  www.lcia.org

-         The New York Convention for the Recognition and Execution of Foreign Arbitral Awards of 1958:  www.newyorkconvention.org

-         The Court of  Conciliation and Arbitration – Organization for Security and Co-operation in Europe:  www.osce.org/cca

-         Permanent Court of Arbitration:  www.pca-cpa.org

-         UNCITRAL:  www.uncitral.org

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[1]See  Merriam Webster’s Collegiate Dictionary, 10^th ed., Merriam-Webster, Incorporated, Springfield, Mass., U.S.A. (1993)

[2] Black’s Law Dictionary, 5^th ed., West Publishing Co., St. Paul Minn., U.S.A. (1979).

[3] See Nayla Comair-Obeid, Arbitration in Lebanese Law: A Comparative Study, 16, Delta, Beirut (1999).

[4] Id. p. 17.

[5] Id.

[6] See arts. 51-63 of the 1806 French Code of Commerce.

[7] See id. art. 332.

[8] See Abdul Hamid El-Ahdab, Arbitration with the Arab Countries, 11-12, 2^nd  ed., Kluwer (1999).

[9] Art. 1790 of the Majalla.

[10] Art. 773 of the C.C.P.

[11] Arts. 771 and 772 of the C.C.P.

[12] Id. art. 810.

[13] Id. art. 769.

[14] Id. art. 766.

[15] Art. 769 of the C.C.P.

[16] Id. art.768.

[17] Art. 769 of the C.C.P.

[18] Art. 788 of the C.C.P.

[19] Id. art. 791.

[20] Art. 773 of the C.C.P.

[21] Art. 776 of the C.C.P.

[22] Art. 776 of the C.C.P.

[23] Art. 813 of the C.C.P.

[24] Art. 799 of the C.C.P.

[25] Id. art. 813.

[26] Art. 780 of the C.C.P.

[27] Art. 779 of the C.C.P.

[28] Id. arts. 779 and 313-362.

[29] Art. 783 of the C.C.P.

[30] Id.

[31] See id. arts. 579-593.

[32] Id. art.787.

[33] Art. 773 of the C.C.P.

[34] See id. arts. 505-508, and 782-784.

[35] See art. 781 of the C.C.P.

[36] See arts. 793-797, 815, 1014 and 1020 of the C.C.P.

[37] Art. 805 of the C.C.P.

[38] Id. art. 806.

[39] Id. para. 2 art. 805.

[40] Id. para. 2 art. 795.

[41] See articles 671-687 of the C.C.P.

[42] See articles 688-702 of the C.C.P.