Analysis & Comments on Arbital Awards.
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Analysis & Comments on Arbital Awards Introduction: In the following presentation I will present a selection of arbitral awards issued by the French Arbitral Tribunal and comment on the clauses of these awards by showing similar legal clauses in the Kuwaiti Arbitral Tribunal, in both normal arbitration and judicial arbitration. In addition, I will demonstrate the differences between the two laws and how the respective legislators dealt with the issues regarding the arbitral proceedings. This will clarify for the reader the positive and negative aspects in dealing with the arbitration process in all areas. Thereafter, I will make suggestions to cover some of the deficits or failures in the two laws. This type of comparison study reveals the positive and negative aspects of the Kuwaiti arbitration law as a research subject. As mentioned previously, the presentation of the positive and negative aspects of a theory and assuring its occurrence and success in practical application in the legal field, cannot be achieved successfully until other, similar theories are presented which show the disparate and different aspects between them and the effects of one on the other in achieving efficiency in the arbitration system. An individual cannot ascertain whether he has in practice made significant and tangible progress until he is challenged by another party on the competence of his work. Such challenge and confrontation between two parties in the competence field leads to positive and negative aspects being revealed which are then assessed by both parties. Ideas and facts can then be defined and a successful form created based on study and in-depth review. Any comparison studies and researches are worthwhile to achieve the aims desired in legislation in all the fields and will also contribute to developing legislation which will perform its desired function. First: Appealing the Amiable Compositeur The Versailles Appeal Court, on 16/10/1997, decided the following: "According to the provision of Article 1482 of the New Civil Procedure Code, the arbitral award issued by an arbitrator in his capacity as Amiable
Any litigant party, before the judicial arbitration, must be able to easily view the documents submitted by the other litigant party without need for presenting an application to do so. Ninth: Internal Arbitration & Enforcement of Arbitral Award This case is about an internal arbitration. The subject matter is about a process which does not include in itself any activity or circulation for wealth or services or outside payment.23 All its activities firmly enclosed inside the country (internal arbitration). The parties in dispute are the French company CN against the French company Minhal. Summary of facts: The arbitration process in this dispute is related to enforcement conditions; revoking the lease contract, managing, and using a commercial shop (a hotel located in Paris) between two companies belonging to a foreign mother company. As is normal, this process does not include any transference of wealth or services or outside payment (i.e. outside the borders of the country) and the execution of the contract does not evoke the interests of international trading. As the Amiable Compositeur Clause is considered a consensual concession between the parties from the consequences and benefits of the legal rules, the parties consequently lose the legal characteristics provided by these rules. So, the arbitrators are to have power to amend and reduce the results of the contractual clauses that comply with the public interest of the two parties. The arbitrators, in this dispute, should specify the type of arbitration, i.e. whether internal or international. The reason for this is that there is a foreign company participating in the capital of the two French companies, as the two companies belong to a group of foreign companies or to a foreign mother company. Comments: The arbitration award decided to consider the arbitration internal Article 1492 of the French Civil and Commerce Procedure Code24 which provides that the arbitration is considered international if it relates to international trade interests, i.e.
Thus it could be said that their authority to resolve disputes is not based on the rules governing resolution of the dispute but on the the volition of the litigant parties who selected them to settle their disputes on specific issues. .Such disputes may include issues that relate to public order, which will not be allowed to be arbitrated by the arbitration system. Therefore, the latter fact ensures that the judicial authority of arbitrators can be conceived through the subject matter of disputes. 20 There are many cases displaying the continued conflict between the public sector and private sector towards the meaning of the public order principle. The contraction of such principle is obivous but usually the public sector offers exaggerated claims in its proceedings so as to get rid of any obligation that may burden its activities. See in details at Chapter .... regarding the scope of arbitration in administration contracts. 21 Also, it was decided in Kuwaiti courts to set aside an arbitral award because it was decided according to notes submitted by a litigant and without providing a chance to the other litigant to discuss and put forward his opinion. 22 According to procedures rules, Article 113 stipulates "The court is not allowed, during deliberation, to hear one litigant partyy without appearance of the other litigant party. Also, it is not allowed to accept documents or pleas from one of litigant parties without displaying such documents and pleas to the other litigant party." 23 On 28 November 1996, published in Arbitration Magazine No. 3 of the year 1997. 24 Article 1492 of the French Civil and Commerce Procedure Code provides that "An arbitration is international when it involves the interests of international trade". 25 This paragraph involves the principle of reciprocity . Awards and orders that are produced in a foreign country may be enforced in Kuwait under the same conditions as those envisaged and enacted in that country when it enforced awards and orders issued in Kuwait. 26 Arbital Award issued on 16 October 1997, published in Arbitration Magazine of the year 1998 No. 3 P. 572. 1
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