Annulment of an Arbitration Clause Incorporated in a Bill of Lading in Application of the 1978 Hamburg Rules: A Commentary on the Egyptian Court of Cassation Decision of February 28, 2006 (Commercial Circuit, Challenge 595/63) (in Arabic)
Majallat Attahkim Al Alamiya [World Journal of Arbitration], Vol. 2, Issue 3, July 2009, pp. 577-588.
19 Pages Posted: 15 Jan 2011 Last revised: 2 Mar 2013
Date Written: July 1, 2009
The Egyptian court of cassation is known for its pro-arbitration and elaborate case-law in matters of sea carriage of goods arbitration developed since the middle of last century, however the commentator criticizes its first application of the new constrains under the Egyptian Maritime Trade Act 8 of 1990 (Articles 246 and 247) adopted after the 1978 Hamburg Rules (Article 22) with regard validity of choice of place of arbitration. According to the commentator, the court should have directly applied the constrains of the 1978 Hamburg Rules with no need to refer to the Egyptian Maritime Act in application of the Egyptian Constitution (Article 151), and it should have validated the clause, giving the claimant the option to resort to arbitration in Alexandria, in addition to the option of London, mentioned in the clause. Annulment of the arbitration clause altogether is at least an adoption of a hard-line interpretation of the constrains that can be found to the contrary of other Hamburg Rules jurisdictions, a recent Jordanian case-law was used in comparison. The original commentary is in Arabic, an English translation is reproduced in the International Journal of Arab Arbitration.
Note: Downloadable document is in Arabic.
Keywords: Bill of Lading, Choice of place of arbitration, 1971 Egyptian Constitution (Article 151), Egyptian Civil Code (Article 143), Egyptian Arbitration Act 27 of 1994 (Article 23), Egyptian Maritime Trade Act 8 of 1990 (Articles 246 and 247), 1978 Hamburg Rules (Articles 3; 22(2), 22(3) and 24), 1958 New
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