Arab Convention
Arab
Convention on Commercial Arbitration
The governments of the following States:
1.
The Hashemite Kingdom of Jordan
2.
The Tunisian Republic
3.
The Algerian Democratic and People's Republic
4.
The Republic of Djibuti
5.
The Republic of Sudan
6.
The Arab Republic of Syria
7.
The Iraqi Republic
8.
Palestinia
9.
The Lebanese Republic
10.
The Libyan People's Socialist Arab Jamahiriya
11.
The Kingdom of Morocco
12.
The Islamic Republic of Mauritania
13.
The Arab Republic of Yemen
14.
The People's Democratic Republic of Yemen
Convinced
of the need to conceive unified Arab rules
on commercial arbitrations which would find
their place amongst the international and
regional arbitration rules;
Wishing
to obtain a fair balance in the matters of
solution of disputes which might arise out
of international commercial contracts as
well as wishing to find fair solutions to
these disputes;
And
on the basis of the objectives of the Council
of Arab Ministers of Justice with the purpose
of a unification of Arab legislations and
their adaption to modern evolution;
Have
agreed the following:
Chapter 1 - General
provisions
Article
1
The
terms used in this Convention shall have
the following meaning:
(a) "The
Convention" means the Arab Convention
on Commercial Arbitration.
(b) "The
Contracting State" means a State acceding
to this Convention.
(c) "The
Council" means the Council of Arab Ministers
of Justice.
(d) "The
Secretary General" means the Secretary
General of the Council of Arab Ministers
of Justice.
(e) "The
Centre" means the Arab Centre for Commercial
Arbitration.
(f) "The
Board of Directors" means the Board
of Directors of the Arab Centre for Commercial
Arbitration.
(g) "The
Bureau" means the Bureau of the Centre.
(h) "The
Director of authentifications" means
the Director appointed for the authentifications
of the Centre.
(i) "The
Agreement to Arbitrate" means the written
agreement by which the parties agreed to
resort to arbitration before or after the
dispute arose.
(j) "The
Roster" means the roster of the names
of arbitrators.
Article
2
This
Convention applies to commercial disputes
between natural or juristic persons of any
nationality, linked by commercial transactions
with one of the contracting States or one
of its nationals, or which have their main
headquarters in one of these States.
Article
3
1.
Reference to arbitration can be made by one
of the two following means:
The
first is to insert an arbitration clause
in contracts entered into between the concerned
parties, and the second is to establish an
arbitration agreement once the dispute has
arisen.
2.
The following standard clause should be inserted
into contracts where one wishes to refer
to arbitration:
"All
disputes arising out of this Contract shall
be settled by the Arab Centre for Commercial
Arbitration in compliance with the provisions
of the Arab Convention on Commercial Arbitration."
Chapter 2 - The
Arab Centre for Commercial Arbitration
Article
4
By
virtue of this Convention, a permanent organization
called Arab Centre for Commercial Arbitration
is created. It shall be an independent juristic
person which is administratively and financially
linked to the Secretariat General of the
Council of Arab Ministers of Justice.
The
Secretary General appoints the officials
of this Centre in compliance with the provisions
of the statutes of the Council and its implementation
rules.
Article
5
1.
The Centre shall have a Board of Directors
made up of Arab personalities experienced
in matters of law and arbitration and who
are appointed by each of the contracting
States for a period of three years, renewable.
2.
The Board of Directors chooses amongst its
members a president for the Centre and two
Vice-Presidents elected for a period of three
years, renewable. The President thus elected
shall also be the chairman of the Board of
Directors.
3.
The Chairman of the Board of Directors and
the two Vice-Presidents shall devote all
their time to the Centre.
4.
The Centre shall dispose of a Bureau made
up of the Chairman and the two Vice-Presidents.
Article
6
1.
The Board of Directors shall meet each year
in an ordinary session but it can may also
meet in extraordinary sessions if necessary.
The internal rules of the Centre determine
the date of these sessions and the manner
in which they are held.
2.
The quorum is deemed to have been met when
the majority of the members of the Board
of Directors are present. The decisions are
taken by a majority of two-thirds of those
present.
3.
The meeting of the Board of Directors are
directed by the chairman who must also convene
them.
Article
7
The
Board of Directors has the following functions:
1.
To make sure of the execution of the provisions
of this Convention.
2.
To establish internal rules for the Centre.
3.
To examine the annual report on the activities
of the Centre and to refer them to the Council
for approval.
4.
To establish the roster of arbitrators.
5.
To exercise the other functions foreseen
in this Convention.
6.
To establish a list of fees and expenses.
Article
8
The
Bureau organizes commercial arbitration,
fixes its bases, drafts model agreements
to arbitrate in international commerce, establishes
rules for commercial transactions, summarizes
the principles on which awards were based
and classifies, prints and edits them.
Article
9
The
Chairman of the Board of Directors of the
Centre is also its legal representative.
Article
10
1.
The Convention of the League of the Arab
States on the privileges and immunities is
applicable to the Centre and to all persons
appointed as members of the arbitral tribunal,
as well as to the parties to the dispute
and their Counsels and Lawyers as well as
to witnesses and experts within the limits
of what is necessary for a good performance
of their mission.
2.
The provisions relating to documents and
archives of the Council are applicable to
the documents and archives of the Centre.
Article
11
The
Council determines the fees of the Chairman,
the two Vice-Presidents of the Centre and
the members of the Board of Directors.
Article
12
The
seat of the Centre is that of the Secretariat
General of the Council in Rabat, capital
of the Kingdom of Morocco.
Article
13
1.
The Secretary General of the Council appoints
a director for the authentifications, chosen
amongst persons holding a law degree ("licence
en droit") and who have experience in
this matter.
2.
This Director works under the supervision
of the President of the Centre.
3.
He gives an official character to the arbitral
awards and certifies each copy. He also takes
all official measures foreseen in this Convention
and which need execution of its provisions.
Chapter 3 - The
arbitral tribunal
Article
14
1.
The Board of Directors shall establish each
year a roster of arbitrators chosen amongst
lawyers or jurists or persons having a large
experience and knowledge of commerce, industry
and finances and of good reputations and
morals.
2.
Before performing their mission, the arbitrators
must take an oath before the President of
the Centre or his deputy. This oath shall
be as follows:
"I
swear before God almighty that I shall judge
fairly and that I shall respect the law applicable
and that I shall exercise my mission with
fidelity, fairness and impartiality."
Article
15
1.
The arbitral tribunal shall be made up of
three members, but the parties may agree
on a sole arbitrator.
2.
Without prejudice of Article 33 of this Convention,
the mission of arbitrators is only terminated
once they have settled the dispute subject
to the arbitration.
Chapter 4 - The
arbitral proceedings
Article
16
The
claimant must:
1.
present to the Chairman of the Centre a claim
containing:
(a)
its names, first name, qualifications, nationality
and address;
(b)
the names, first name, qualifications and
nationality of the defendant;
(c)
a summary of the dispute and the facts relating
thereto;
(d)
its claims;
(e)
the name of the proposed arbitrator.
2.
Join to its claim the agreement to arbitrate
and all documents and evidence relating to
the dispute.
3.
The request for arbitration is only accepted
after payment of the dues.
Article
17
1.
As of receipt of the request, the chairman
of the Centre acknowledges receipt thereof
and notifies a copy of this to the defendant.
2.
The defendant must, within thirty days following
this notification, present its defence and
counterclaims, if any, as well as the name
of the arbitrator which it had chosen. To
this must be added all documents of which
this party disposes. Upon its request, the
Bureau may grant it an additional time-period
not exceeding thirty days.
Article
18
1.
If the claimant does not appoint its arbitrator
in its request, the Bureau itself appoints
the arbitrator chosen on the roster within
a week following registration of the request.
2.
If the defendant does not appoint its arbitrator
within the thirty days foreseen in the above
article, the Bureau appoints him itself from
the roster.
3.
The chairman of the Centre invites the parties
to agree on a chairman of the arbitral tribunal
chosen upon the roster once the two other
arbitrators have been appointed provided
that such appointment of the chairman shall
be made within thirty days following the
date at which the parties have been invited
to do so. If the parties cannot agree on
this choice the Bureau itself appoints the
Chairman from the roster.
4.
The arbitrators appointed by the Bureau may
not be nationals of one of the parties.
5.
If one of the parties objects against the
validity of the appointment of an arbitrator,
the Bureau settles this dispute by a final
decision which must be taken urgently.
6.
If one of the arbitrators dies or is unable
to perform his mission because of an event
of force majeure, another arbitrator is appointed
in his place according to the same manner
that was used for the appointment of the
first arbitrator.
7.
The arbitrator may not resign after having
started his mission. If serious grounds appear
which hinder him from following up his mission,
he may resign after approval of the Bureau
of the Centre.
Article
19
1.
Each party may challenge one of the arbitrators
provided the grounds for such challenge are
mentioned in the request for challenge.
2.
The Bureau settles the request for challenge
within seven days following the date at which
this request was received.
3.
If the request for challenge is accepted,
a new arbitrator is appointed according to
the same manner than the challenged arbitrator.
The latter as well as the parties are notified
of the Bureau's decision as of its making.
Article
20
Once
the arbitral tribunal has been set up, the
chairman of the Centre transmits the file
to it so that it starts to perform its mission.
Article
21
1.
The arbitral tribunal shall settle the dispute
in compliance with the contract entered into
between the parties and the provisions of
the law on which they might expressly or
tacitly have agreed, else with the law which
has the closest relation with the subject
matter of the dispute provided that the well-established
rules of international commercial usages
are respected.
2.
The arbitral tribunal must settle the case
ex aequo, et bono if the parties expressly
so agree.
Article
22
The
arbitration takes place at the seat of the
Centre unless the parties have agreed that
it shall take place in another country approved
by the arbitral tribunal after consultation
of the Bureau.
Article
23
1.
The language of the proceedings, pleadings
and the award is arabic.
2.
The arbitral tribunal may decide to hear
parties, witnesses and experts who do not
speak arabic by resorting to a translator
after having him take an oath.
3.
The arbitral tribunal may authorize that
pleadings and evidence as well as all submissions
be made in languages other than arabic provided
that they be translated into arabic.
Article
24
A
plea for a lack of jurisdiction as well as
other pleas must be raised before the first
hearing. The arbitral tribunal must settle
these points before going into the substance
of the dispute and its decision in this respect
is final.
Article
25
The
arbitral tribunal may, at any stage during
the proceedings, request the parties to produce
other documents and evidence. It may also
inspect places and make any investigations
it deems necessary.
Article
26
At
any time after the closure of the hearing
and before the award is made, the arbitral
tribunal may, by its own motion or upon request
of one of the parties, decide to re-open
the hearings for serious grounds.
Article
27
Arbitration
under the provisions of this Convention shall
have the effect to forbid reference of the
dispute to the courts of law as well as a
recourse against the award before these courts.
Article
28
1.
If one of the parties refrains from appearing
without valid grounds during any stage of
the proceedings, the proceedings shall take
place in its absence.
2.
If a party does not appear and does not submit
any defence before the arbitral tribunal,
this shall not be considered as an acknowledgment
(by such party) of the truth of the other
party's allegations.
Article
29
Upon
request of any of the parties, the arbitral
tribunal may take any interim measure of
protection it deems necessary.
Article
30
A
party who is aware of a breach of any of
the provisions or conditions of this Convention
and continues the arbitration without objecting
against this shall be deemed to have waived
its right to put this forward.
Chapter 5 - The
Award
Article
31
1.
Once the hearing is closed, the arbitral
tribunal shall meet to deliberate and make
the award.
2.
The award is made by mutual agreement or
by a majority within six months following
the date of transmission of the file to the
arbitral tribunal.
3.
Upon request of the arbitral tribunal, the
Bureau may extend the above-mentioned time.
4.
If the Bureau is not convinced by the reasons
put forward by the arbitral tribunal to request
an extension of time, the Bureau fixes a
time in which the arbitral tribunal must
make its award and once this time has expired,
the mission of the arbitral tribunal shall
be terminated.
5.
If the arbitrators cannot agree, the award
is made according to the opinion of the Chairman
and it is signed by the latter but this must
be mentioned in the award.
6.
A dissenting arbitrator may mention his dissenting
opinion on a separate page which is joined
to the award.
Article
32
1.
The award must give the reasons on which
it is based and it must mention the names
of the arbitrators and of the parties, the
date and place where it was made, a general
summary of the facts, the claims of the parties,
the summary of their arguments, the reply
of the arbitral tribunal which is given to
these and the award must mention which party
must pay the expenses in whole or in part.
2.
Within the three months following the making
of the award, the Director of Authentification
sends a copy of it to each party by registered
letter with acknowledgment of receipt.
Article
33
1.
If there is a material error in the award,
the arbitral tribunal, either by its own
motion or upon written request of one of
the parties, may correct this error after
having notified this request to the other
party and provided that this request is made
within fifteen days following the date at
which the written award was received.
2.
The decision to correct a material error
is made on the award itself and is deemed
to be an integral part thereof. Both parties
must be notified of the decision to correct.
Article
34
1.
Each party may, by a request sent to the
Chairman of the Centre, request that the
award be set aside in one of the following
cases:
(a)
if it is obvious that the arbitral tribunal
exceeded the scope of its functions;
(b)
if a judgment established a new fact which
could substantially influence the award,
provided, however, that the ignorance of
these facts was not due to the lack of diligence
of the party which requests the setting aside;
(c)
if one of the arbitrators was under undue
influence and if this had an effect on the
award.
2.
The request for setting aside must be presented
within sixty days following the date of receipt
of the award. However, if this request is
based on one of the two grounds mentioned
in paragraphs (b) and (c) above, it must
be presented within sixty days following
the date at which these facts were discovered.
In all cases, the request of setting aside
cannot be accepted after expiry of one year
following the date of making the award.
3.
The Bureau appoints a Commission made up
of a chairman and two members chosen upon
the roster which studies the request and
settles it quickly. However, this Commission
cannot analyze grounds other than those mentioned
in the request for setting aside.
4.
(sic) The Commission may not contain among
its members one of the arbitrators who made
the award or an arbitrator who has the same
nationality as one of the parties to the
dispute.
5.
The Commission may set aside totally or in
part the decision if the ground on which
the request for setting aside was made is
justified.
6.
The Commission may provisionally suspend
enforcement of the award until the request
for challenge had been dealt with.
Article
35
The
Supreme Court of each contracting State must
give leave to enforce to awards of the arbitral
tribunal. Leave may only be refused if this
award is contrary to public order.
Article
36 - Transitory provisions
By
exception to the provisions of paragraph
2 of Article 5 and the provisions of Articles
11 and 13 of this Convention, the Secretariat
General of the Council shall be the Chairman
of the Bureau and shall appoint two vice-presidents
chosen amongst the officials of the Secretariat
General of the Council. He also chooses the
Director of Authentifications amongst the
officials of the Secretariat General holding
at least a law degree ("licence en droit")
until the Centre has sufficient financial
capacity to cover its expenses.
Chapter 6 - Final
provisions
Article
37
This
Convention is subject to approval, acceptance
and ratification of the signatory parties.
The instruments of approval, acceptance and
ratification shall be deposited with the
Secretariat General of the League of Arab
States within thirty days following the date
of approval, acceptance and ratification.
The Secretariat General must notify the other
member States of the deposit of these instruments
and its date, as well as the Secretariat
General of the Council and the Presidence
of the Centre.
Article
38
Each
concerned authority in each signatory country
shall take the necessary national measures
for the execution of this Convention.
Article
39
This
Convention shall come into force thirty days
after the seventh deposit of the instrument
of approval, acceptance or ratification.
Article
40
1.
Each State of the League of Arab States,
who has not signed this Convention may accede
thereto by addressing a request to this effect
to the Secretariat General of the League.
2.
A State wishing to accede to the Convention
is held to be bound by this Convention due
to the sole fact that he has deposited the
instrument of approval, acceptance or ratification
and 30 days after the date of this deposit.
Article
41
No
party may make any reservation implying explicitly
or tacitly a contradiction with the provisions
of this Convention or contrary to its purpose.
Article
42
1.
Any contracting or acceding party may withdraw
from this Convention by presenting a written
reasoned request which it must send to the
Secretary General of the League of Arab States.
2.
This withdrawal will only be effective one
whole year after the date of sending of this
request.
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