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First: The Notion of an Arbitration Agreement
1. General Overview
The laws of the Arab countries that form the subject
matter of this research regulating arbitration
provisions are at least in format divided into two
categories: The first group regulated these
provisions in their respective Laws of Civil
Procedures, while the other regulated them in a
separate Law altogether. The first group of
countries comprises Syria (Chapter 4, Articles 506 –
534), Lebanon (Vol. 2, Chapter 1, Articles 762 –
821), the United Arab Emirates (Chapter 4, Articles
203 – 218) and Qatar (Chapter 13 of the Law of Civil
and Commercial Pleadings, Articles 190 – 210). While
the second group, comprises Egypt (Law no. 27 of
1994), Jordan (Law no. 31 of 2001), Oman (Sultanate
Decree no. 47 of 1997) and Palestine (Law no. 3 of
2000).
It is to be noted that these Laws, and specially
those of countries that have legislated separate
Laws for Arbitration, are so similar and are almost
identical to each other in many respects. In form,
this similarity is essentially attributed to the
source, i.e. the Model Law, which was adopted by the
(UNCITRAL) United Nations Commission on
International Trade Law in 1985(1). The bulk of the
Egyptian Law is derived from and based on the Model
Law,(2) while the Laws of the other Arab countries
(Oman, Palestine and Jordan) are derived mainly from
the Egyptian Law. While, substantively, the
similarity is attributed to the fact that all the
laws of the Arab countries that are covered in this
paper, in addition to the UNCITRAL, have given wide
and primary powers to the parties’ will in the
arbitration process(3). All these Laws underscore
that the source of arbitration is the intention of
the parties, the absence of which bars any referral
to arbitration. As a general rule, they all agree on
the right of the parties to constitute the
arbitration tribunal, by mutual agreement, either
directly or indirectly; just as the parties’ rights
to decide on the arbitration procedures to be
followed. The parties’ agreement could also
influence the shape and form of the arbitral award,
such as, for instance, whether they wish the award
to be reached unanimously, rather than be a
majority, or to agree not to challenge the award
once rendered, at least with regard to certain types
of challenges (not all).
However, in return, Arab countries’ Laws differ on
the details, which necessarily reflect on the
application in the various countries. An example is
that Egyptian Law, just as the Omani, Palestinian
and Jordanian, expressly stipulate the independence
of the arbitration clause from the contract in which
it is contained, which we shall elucidate
hereinafter. These countries’ Laws are similar on
this doctrine, which is also reflected in their
respective case law. Nonetheless, there are other
Laws, such as Syria’s, the Emirates’ and Qatar’s,
which do not provide for this doctrine, hence
entailing the application of the general rules, that
do not uphold the doctrine of the non-independence
of the arbitration clause(4). Furthermore, all
relevant Laws stipulate that the arbitration
agreement must be in writing. However, some
countries, such as Egypt, Oman, Palestine and
Jordan, stipulate that the arbitration agreement is
void if it is not in writing, whereas other
countries, such as Syria, Lebanon, the Emirates and
Qatar, have stipulated that the arbitration
agreement be in writing for evidentiary purposes(5).
2. Legal Provisions
The Syrian, Emirate, and Qatari legislature did not
define the arbitration agreement, but were content
with stipulating the right of the parties to agree
to submit a dispute or certain disputes to
arbitration. In this regard, Article 506 of the
Syrian Law provides that “Parties to a contract may
generally stipulate to refer any dispute arising out
of a contract to a sole arbitrator or more; and they
may agree to submit a certain dispute to
arbitration, subject to certain provisions”. Also,
Article 190 of the Qatari Law provides that “Parties
may agree to refer a certain dispute to arbitration
by a special arbitration document; and they may
agree to submit to arbitration all disputes arising
out a certain contract". And Article 203/1 of the
Emirates Law provides that “Parties, generally, may
agree in the original contract between them, or in
any other subsequent agreement, to refer any dispute
that may arise between them in connection with a
certain contract to a sole arbitrator or more; and
they may agree to submit to arbitration a certain
dispute and subject to special provisions”.
Similarly, Jordanian Law did not define the
arbitration agreement or arbitration per se, but
provided in Article 3 the possibility of submitting
to arbitration civil and commercial disputes
“between parties of public or private law persons
whatever the nature of the legal relationship to
which the dispute is connected, whether contractual
or not”. However, Lebanese Law distinguishes between
an arbitration clause, which it refers to as
arbitral article, and arbitration stipulation, which
Lebanese Law refers to as arbitral contract. With
regard to the arbitration clause, (arbitral
article), Article 762 of the said law provides that
parties to a contract may include a article, in the
commercial or civil contract between them,
stipulating that all amiable compositeaur disputes
arising out of a contract or its interpretation are
to be submitted to arbitration. However, with regard
to an arbitral contract (arbitration stipulation),
Article 765 of the same Law defined it as a contract
whereby parties thereto agree to resolve an amiable
compositeaur dispute between them through
arbitration by a sole or multiple arbitrators. We
shall present hereinafter the difference between
arbitration clause (arbitral article) and
arbitration stipulation (arbitral contract).
As for the Egyptian Law of Arbitration, Article 10/1
of said Law defines an arbitration agreement as “an
agreement between the parties to refer to
arbitration all or certain disputes which have
arisen or may arise between them in respect of
directly defined relationship, whether contractual
or not”(6). This stipulation corresponds to Article
10/1 of the Omani Law(7), and Article 5/1 of the
Palestinian Law(8).
3. Elements of the Agreement
A thorough examination of Arab Laws referred to
above, reveals that they conform with the general
principles and basic elements of the arbitration
agreement, in terms of the requirement that there be
a current or future dispute, and an agreement to
refer it to arbitration; and that the dispute be,
broadly speaking, a civil one, whereby it includes
commercial disputes, or vice versa, where the
dispute is, broadly speaking, commercial, whereby it
includes civil disputes. Certain Laws, such as
Jordan’s, also sanctions arbitration in
administrative contracts, whereas other countries
also sanctions it, but subject to the concerned
Minister’s approval, as is the case with the
Egyptian Law. All these laws are unanimous on the
requirement that parties to an arbitration agreement
must enjoy legal capacity, for the agreement to be
valid; and that only amiable compositeaur matters
could be referred to arbitration. They all provide
that an arbitration agreement could be either in the
form of a stipulation in the contract, or in an a
separate document; and that the subject matter of
the dispute be one which is referable to
arbitration; and that the legal relationship, or
relationships, from which the dispute has arisen, is
defined. Moreover, they agree that arbitration could
be either ad hoc or institutional, and on the
parties’ right to relive the Arbitral Tribunal from
abiding by procedural rules customarily followed by
the courts. Furthermore, they all stipulate that the
arbitration agreement must be in writing, noting
that, as was mentioned, in certain jurisdictions,
the requirement that the agreement be in writing is
a condition precedent for its formation and
validity,, while in others it is for evidentiary
purposes. As for the interpretation of the
arbitration agreement, case law in these countries
underscore that arbitration is an exceptional form
of dispute resolution and, accordingly, they accord
the arbitration agreement narrow interpretation.
4. Arbitration Defined
Arbitration, in its most simple form, is an
agreement by parties to a defined legal relationship
within the context of private law, to submit their
financial dispute to a person or more, to be
appointed, directly or indirectly(9), by the
parties, and for that person(s) to issue a final
(binding) award in relation to the dispute in lieu
of the official judicial system(10). The enforcement
of Arbitral Awards follows the same path as court
judgments, provided that the legal requirements are
met. An example is where there is a contract between
(A) and (B), which stipulates that any dispute
related to the contract is to be settled through
arbitration and that (C) is the sole arbitrator with
the task of settling such dispute(11). Likewise,
there could be no such agreement but, after a
dispute has arisen, (A) and (B) agree to refer said
dispute to (C),as a sole arbitrator, to settle it,
as opposed to resorting to the courts. In both
cases, such agreement is binding on both (A) and (B)
in that they are obliged to settle their dispute
through (C) and not through the court or, else, the
court will dismiss the case in form if certain
conditions are met. Should the dispute be referred
to (C), he is expected to handle the matter as if it
was a court case, whereby he should listen to both
parties’ claims, requests, pleas, defences and
evidences with neutrality and impartiality, and then
issue his finding as if it was a judicial
decision(12). Following its endorsement by the
competent department, the Award is enforceable just
as any other judicial ruling.
5. Arbitration Removes the Courts’ Judicial
Jurisdiction
Accordingly, such notion of an arbitration agreement
removes, in principle, the courts’ jurisdiction(13),
and bestows the jurisdiction to decide the dispute
to another person(14). If such an agreement exists,
then resorting to arbitration is deemed to be the
right of both parties, or either, depending on the
circumstances, while by the same token, it is also
an obligation. Hence, according to our erstwhile
example, should a dispute arise between (A) and (B),
with (A) being the Claimant, he should have the
right to resort to arbitration, and (B), being the
Respondent (Defendant), should consent to such
referral, and vice versa. Put differently, (A) is
obliged to resort to arbitration, as opposed to
resorting to the courts, as this is (B’s) right. If
(A) is to resort to the courts in lieu of
arbitration, (B) shall be entitled to put up the
challenge of the existence of an arbitration
agreement. In such instance, the court is obliged to
refuse to hear the case, and dismiss the claim in
form(15).
It is worthwhile noting that removing the
jurisdiction is preliminary and not permanent(16),
just as it is partial and not total. Competence to
hear the dispute shall revert back to ordinary
courts should the arbitration agreement be
extinguished for whatever reason, be it nullity,
voidance, rescission or express or implied
relinquishment. Moreover, ordinary courts enjoy wide
powers in overseeing the arbitration process, such
as appointing the Arbitral Tribunal or a sole
arbitrator, if the parties so wished, or if either
party refused to nominate an arbitrator; and in the
eventuality of a removal, challenge, or replacement
of an arbitrator; and in assisting the Arbitral
Tribunal in serving notices, and summoning
witnesses, should the need arise. Most crucially,
the Arbitral Award is unenforceable unless endorsed
by the competent court.
6. Arbitration is a Contract
Arbitration, as described above, is a contract just
like any other, whether came about in the form of an
arbitration clause in the original contract, or as
an agreement independent of the contract, and
whether this independent agreement is made prior to
or after the dispute. This leads us to state that an
arbitration agreement, being a contract, is subject
to the general provisions of Contract(17), in terms
of formation, consequences, effects and
extinguishment, unless governed by any other special
law, where the latter would prevail in terms of
application(18).
However, an arbitration agreement is to be
distinguished from other contracts in that it does
not stand independently and is always linked to a
defined legal relationship, usually by way of a
contract of sorts. But this relationship may be
non-contractual, in that it may emanate from a
unilateral disposition (unilateral act) or an
injurious act (a tort) or a beneficial act (unjust
enrichment), or Law, being one of the direct sources
of obligations(19). It is hard to imagine an
arbitration agreement in the absence of such
relationship, otherwise the contract, i.e. the
arbitration agreement, would be rendered without a
subject matter or cause, and accordingly, void. When
we talk of the existence of a relationship, we do
not necessarily mean a legal relationship, suffice
it that it be material, as it need not be legal.
Since as we shall see later an arbitration agreement
could still be upheld, notwithstanding the
nullification or rescission of the contract to which
it is attached. This is referred to as the
separability doctrine, a doctrine adopted by a
various Arab Laws that form the subject matter of
this paper.
7. The Nature of the Arbitration Agreement
By virtue of the nature of an arbitration agreement,
being a legal act, we find that the laws of the Arab
countries that form the subject matter of this paper
have divided legal acts into administrative acts and
disposition acts, in terms of a person’s capacity,
and specially the natural person. Administrative
acts denote those acts whose aim is to administer
and invest funds, or safekeeping it, while ownership
thereof remains with the original owner, i.e. he
continues to have the title for it. Such acts
include lending the funds or depositing them at a
bank in return for interest, if it were monies, or
depositing it with an honest party for safekeeping,
or to enter into agreement with someone to utilize
it and invest it in whatever manner. As for
disposition acts, they cover activities that result
in the funds moving from the owner to another,
whether by way of proceeds from sale, or without
return as in the case of a gift, or the likelihood
of it moving from the owner, as in the case of
mortgage. Such dispositions are in turn divided into
absolute benefits, as in accepting a gift or a
guarantee of a loan without return, or to absolute
detriments, such as bequeathing a gift or lending
monies or offering a guarantee for no return. It is
worth noting that there exists a middle ground that
varies between benefit and detriment, such as sale,
barter and partnership. Such division of legal acts
has a major impact on the minor in Arab laws,
especially in connection with acts of dispositions.
These laws void all dispositions by an undiscerning
minor, and those dispositions made by a discerning
minor, which result in an absolute detriment to him.
As for dispositions that confer absolute benefit on
him, they are upheld. With respect to dispositions
that fall between the two, they are considered valid
but subject to certain conditions and provisions
that fall beyond the scope of this paper.
A question arises surrounding the nature of an
arbitration agreement as a legal act, and the extent
one could regard it as falling under one of the
aforementioned legal acts. The courts, in a number
of Arab countries, have provided us with answers to
this question by holding that this agreement falls
within the range of actions that fall between the
two – the middle ground. Whereby if one of the
parties is a discerning minor, the agreement is
voidable for the benefit of the minor(20), however,
we do not necessarily subscribe to this position,
for following any examination of an arbitration
agreement we would discover that its subject matter
and aim is to settle a certain dispute connected to
one of those acts (or others), away from ordinary
courts, and assigning such task to a person agreed
to by both parties (as was mentioned above).
Accordingly, it is not an act that falls under
administration, since it is not linked to
administering of funds through investments or
otherwise. Similarly, it is not disposition, since
its subject matter is not dealing with a certain
money. Hence, it has its own distinct nature, and
accordingly, cannot be placed under any of the
aforementioned legal acts.
Second: Types of Arbitration Agreement
8. Arbitration Clause
An arbitration agreement could be in the form of a
clause in the original contract that regulates the
legal relationship between the parties, which is the
most commonplace and practical form, and is
customarily referred to as an “arbitration
clause”(21). Usually, the clause is mentioned in an
abridged and brief format, merely referring a
dispute to arbitration, such as “any dispute that
may arise between the parties shall be submitted to
arbitration”. It happens at times that parties tend
to expand the clause by including certain extra
provisions, such as the place of arbitration, the
applicable law, the attributes and qualifications of
all or some of the prospective arbitrators to be
appointed to the Arbitral Tribunal, such as a
requirement that the Chairman be an engineer, a
lawyer or an auditor, or that two of the arbitrators
be legally qualified, with the Chairman being an
engineer. Parties may also specify the nationality,
sex and age of all or some of the prospective
arbitrators, although in practical terms it is a
rarity. If the arbitration is institutional (22), it
is common for the concerned arbitration institution
to lay down a formula advising the parties to
include it in their respective contracts should
their desire be to submit their disputes before it.
In this event, rules and procedures of the concerned
institutions are followed, including the mechanism
for the appointment of arbitrators.
Once an arbitration clause is included in the
contract – be it at the beginning, end, or anywhere
in the contract – any dispute that may arise from or
in connection with the said contract shall be
referred to arbitration, unless the contract, either
expressly or impliedly, stipulates otherwise. One
such example is when there is a contract for sale
containing a clause stipulating that the vendor
provides a performance bond issued by a bank, and
the contract stipulates that any dispute over the
warranty be referred to arbitration. Or for the
contract to be divided into two independent parts:
the first deals with construction works and
appertains to regulating the rights and obligations
of the parties; while the second deals with
warranties that the contractor is obliged to submit
in favour of the works, such as loan warranty, or
performance and maintenance bond, and the
arbitration clause is mentioned in the first part,
thus insinuating that it applies only to the first
and not the second. In other words, it is a matter
of interpretation of the arbitration clause, which
is a matter for the judge or the Arbitral Tribunal
to decide, as the case may be.
9. Independent Agreement
An agreement to submit a dispute to arbitration may
not be contained in the contract altogether, but in
a separate agreement, independent of the original
contract. As is the case with the arbitration
clause, such agreement may have been made prior to
the dispute. One such example is when the contract
makes no mention of a referral to arbitration, but
the parties enter into another independent agreement
to submit any future disputes appertaining to the
original contract to arbitration. This agreement
could be either attached to the original contract in
the form of an addendum, or could have been entered
into subsequent to the original contract, but before
any dispute has arisen. These two types of an
arbitration agreement, i.e. arbitration clause, and
other arbitration agreements made prior to the
arising of a dispute have been stipulated in some
Arab countries’ laws covered in this paper, such as
the Egyptian and Jordanian laws(23). While other
Laws, such as Qatar’s, do not provide for theses two
types of an arbitration agreement, but it could be
argued that the general rules do not prescribe for a
specific form of an arbitration agreement, or for a
defined time. Accordingly, Qatari Law does not bar
either of the forms mentioned above.
We do not necessarily find any cause for
distinguishing between an arbitration clause and
other forms of arbitration agreements concluded
prior to the arising of the dispute. However, it is
to be noted that laws in Arab countries and case law
have underscored the independence of the arbitration
clause from the original contract, in which it is
contained, as shall be elucidated hereunder. It
could be gleaned that this independence is confined
to the arbitration clause and does not cover other
arbitration agreements, which are deemed to be part
of the original contracts, with the various legal
effects that we shall discuss thereafter.
Nonetheless, we do not agree with such
understanding, as we subscribe to the viewpoint that
the applicability of the independence principle on
the arbitration clause should also include
arbitration agreements made subsequent to the
original contract, including an arbitration
stipulation, for unity of purpose in all forms of
arbitration agreements.
10. The Clause and Agreement Combined
On the other hand, we may face a situation where we
have an arbitration clause and the subsequent
arbitration agreement, which is still made prior to
the dispute. One such example is when the contract
contains an arbitration clause, and subsequent to
the conclusion of the contract, the parties agree on
the conditions, provisions and rules of arbitration,
primarily based on the arbitration clause, such as
the place, language and procedures to be followed.
In all cases, the parties are not compelled to
conclude an arbitration agreement to that effect.
However, they may agree otherwise in the original
contract, such as wording the arbitration clause in
the following manner: all contractual disputes are
to be submitted to arbitration in accordance with
the conditions, provisions and rules that are to be
decided in due course. If they agree on such
arrangement, then this agreement would apply and
shall be binding on them. In this instance, the
vacuum in the arbitration clause shall be filled in
accordance with the provisions of the Law, which
deals with such matters, such as appointment of
arbitrators, the procedures before the Arbitral
Tribunal and the requirements of the Arbitral Award,
and other provisions, unless it was inferred from
the intention of the parties that the operation of
the arbitration clause is contingent upon the
conclusion of a more detailed subsequent agreement.
In such instance, failure to agree shall render the
arbitration clause, in effect, void, and again this
is a matter of interpretation and construction.
If the arbitration agreement and arbitration clause
are joined together as indicated above, and the
first was dependent upon the existence of the
second, it is deemed that the arbitration agreement
is subservient to the arbitration clause, in terms
of non-existence, not existence. In other words, if
the arbitration clause is void, or has been
terminated for whatever reason, such as mutual
rescission, the arbitration agreement shall, in
turn, be voided; but the reverse is not true, in
that the arbitration clause may be proper and valid,
while the arbitration agreement may be void. Since
both parties may be in full capacity at the time of
the conclusion of the arbitration clause, while at
the time of the conclusion of the arbitration
agreement one of them may have been rendered
incapacitated, in that case the first is valid,
while the latter is void. This nullification does
not affect the arbitration clause, since it is
subservient to the clause and not vice versa.
Nevertheless, one could state that the relationship
between the arbitration clause and the subsequent
arbitration agreement is a matter of interpretation
of the intention of the parties, according to the
circumstances. It could be that the purpose of the
subsequent agreement that is for it to be
subservient to the arbitration clause as shown
above; also, it may be that the intention of the
parties was to abrogate the arbitration clause and
replace it with a new agreement. In such instance,
the arbitration clause is rendered extinguished,
while the arbitration agreement is valid, and
arbitration is accordingly based on the latter, not
the former.
11. The Arbitration Stipulation
An arbitration agreement may have been made after
the dispute had arisen, whereby both parties agree
to refer this dispute, which has in fact arisen, to
arbitration. This type of agreement is
jurisprudentially and judicially referred to as an
arbitration stipulation in order to distinguish it
from an arbitration clause(24). Accordingly, the
difference between an arbitration stipulation and
other arbitration agreements, is whether the
arbitration agreement was made prior or after the
dispute had arisen. In the case of the latter, it is
deemed an arbitration stipulation, while the former
falls within the ambit of other arbitration
agreements. The laws of Syria, the Emirates and
Qatar do not accord this distinction much
attention(25), but rather stipulate the requirement
of defining the subject matter of the dispute,
either in a document or in the arbitration
agreement(26), or at the pleadings stage, as
enshrined in Syria’s and Qatar’s laws, or during the
hearing of the case, according to the Emirates’ law.
Nonetheless, it is to be noted that it is somewhat
difficult, not to say impossible, to define the
subject matter of the dispute in the arbitration
clause as long as it is contingent upon a potential
future event, which may or may not occur. Hence, the
stipulation in both Laws, for the requirement to
define the subject matter of the dispute in the
arbitration document, appertains to the arbitration
stipulation, not the arbitration clause. However, it
is not imperative to define the subject matter of
the dispute in the arbitration stipulation for it to
be valid, since the parties may lay out the subject
matter of the dispute a priori at the pleadings
stage before the Arbitral Tribunal. Since it is
rather awkward for one of the parties to initiate
arbitration proceedings without laying out the
subject matter of the dispute, just as it is
impossible for the Arbitral Tribunal to hear a case
and decide it without having the dispute defined and
laid out; otherwise the entire arbitration
proceedings is deemed void.
12. Terms of Reference
It is also worthwhile distinguishing between an
arbitration stipulation and what the International
Chamber of Commerce refers to as the Terms of
Reference. The Arbitral Tribunal, following receipt
of the arbitration file from the ICC, drafts this
document. The file at this stage generally contains
the request for arbitration by the claimant, the
reply thereto and the counter-claim, if any, by the
respondent, and the claimant’s reply to the
counter-claim. These documents contain various
primary and basic elements of the arbitration case,
such as the names of the parties, the facts of the
claim, evidences and requests, which have the effect
of enabling the Arbitral Tribunal to form a
preliminary idea of the nature of the dispute. At
this stage, the Arbitral Tribunal prepares a draft
of the Terms of Reference, which includes a summary
of the facts, the parties requests and the issues to
be ultimately decided by the Tribunal. The Terms of
reference is subsequently sent to the parties for
their comments and observations. Once the Terms of
Reference is drafted in a final form, the Arbitral
Tribunal sends it to the parties for their signature
and then the Arbitral Tribunal signs it. When all
the signatures are obtained, the Terms of Reference
is sent to the ICC Court for endorsement. Once the
endorsement is given, the Arbitral Tribunal begins
the arbitration proceedings aimed at settling the
dispute(27).
Accordingly, it becomes abundantly clear that the
Terms of Reference complement the arbitration
stipulation in that both have been prepared and
drafted before the dispute has arisen, and not
after. However, there remain basic differences
between them. The stipulation is the arbitration
agreement itself, hence, both parties’ signature is
required, otherwise there is no referral to
arbitration, whereas the Terms of Reference is
invariably prepared on the assumption that an
arbitration agreement is in existence, whether in
the form of clause, a stipulation, or an independent
agreement. It also assumes that a referral to
arbitration is made on the strength of an
arbitration agreement. In form, it is to be noted
that an arbitration stipulation is prepared by the
parties themselves, whereas the Terms of Reference
is prepared by the Arbitral Tribunal, with or
without the parties’ participation. Accordingly, it
could be adopted and applied on the parties even
without their consent should they refuse to sign it.
13. Agreement on Arbitration Before the Court
It happens quite frequently that parties to a
dispute may agree to submit their dispute to
arbitration while their case is being heard before
the courts, and in the absence of an arbitration
agreement. One such example is when there is a
contract between (A) and (B) that does not contain
an arbitration clause. Should a dispute arise which
prompts (A) to resort to court, both parties may
still agree – either before the court or on their
own – to settle that very dispute through
arbitration(28). In that event, the court, upon the
request of either or both parties, must dismiss the
case and refer the dispute to arbitration. Such
agreement is permissible, whether the case is being
heard before the Court of First Instance, the Court
of Appeal, and even before the Court of Cassation,
provided it has not rendered its decision yet (29).
However, there is a difference between an
arbitration agreement made while the case is being
heard by the court, and an original arbitration
agreement made before lodging a case before the
court. This difference relates to the court where
the Arbitral Award and other arbitration documents
are to be deposited, and to the authority, which is
expected to handle the notification of the Arbitral
Award to the parties. Naturally, this appertains to
countries that adopt such procedures, as Egypt,
Oman, Syria, Qatar and the Emirates, which is beyond
the scope of this paper.
It is to be noted that various Arab laws require an
arbitration agreement to be in writing. Accordingly,
entering the parties agreement to refer their
dispute to arbitration in the hearing’s minutes, and
issuing a court decision to dismiss the case and
refer the dispute to arbitration, is tantamount to a
written arbitration agreement, even where the
court’s minutes are not signed by the parties(30).
14. Reference to a Document Containing an
Arbitration Clause
It frequently happens that parties do not directly
agree to arbitration in the original contract
between them, but make reference in the contract to
stipulations contained in another document that are
applicable, but which are not provided for in the
original contract. This other document may contain a
stipulation for the settlement of disputes through
arbitration. An example is when the contract between
the parties is one for the carriage of goods by sea
between the shipper (A) and the consignee (B), and
the Bill of Lading stipulates the application of the
provisions contained in the vessel’s hiring contract
between (A) and the hirer (C), which are not
contained in the Bill of Lading. If we are to assume
that the Bill of lading does not contain a dispute
resolution clause, while the vessel’s hiring
contract provides for the settlement of any dispute
between (A) and (C) through arbitration, in such
event, general rules necessitate the application of
the arbitration clause to the relationship between
(A) and (B) as long as the contract governs the
relationship between the contracting parties(31).
However, we do not necessarily subscribe to the
position that general rules should not enjoy blanket
application, save when they are in conformity with
arbitration rules. There is a consensus in Arab
countries that arbitration is an exceptional method
of dispute resolution, a view asserted and confirmed
by case law in various Arab jurisdictions. And owing
to the significance of an arbitration clause, we
find that many modern arbitration laws have stressed
the requirement that reference to arbitration be
expressly and clearly stated, inasmuch as making it
part of the agreement. In fact, this is the
stipulation contained in Article 7(2) of the Model
Law, which provides that reference in a contract to
a document containing an arbitration clause
constitutes an arbitration agreement provided that
the reference is such as to make that clause part of
the contract (32).
One such example is when the contract between (A)
and (B) expressly stipulates the applicability of an
arbitration clause in the following manner:
“including the arbitration clause contained in the
vessel’s hiring contract”. As we see, a vague or
ambiguous referral to an arbitration clause is
inadequate, such as saying “including the dispute
resolution clause”, since the latter does not
necessarily denote that the clause is an arbitration
clause. It goes without saying that it is not a
requirement that reference to an arbitration clause
be made in the original contract between (A) and
(B), but could be made subsequent to it. This view
is expressly adopted by Egyptian Law when stating in
Article 10/3 that every reference in a contract to a
document containing an arbitration clause is deemed
an arbitration agreement, provided the reference is
clear as to make that clause a part of the contract.
Both Omani and Jordanian Laws have adopted identical
provisions(33).
Third: Independence of the Arbitration Clause
15. The Orthodox and Modern Principles
At times, we are faced with a situation where an
arbitration clause is contained in an original
contract that is rendered void for whatever reason,
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