The origin is that arbitration is an exceptional way of litigation limited to what the will of its parties is concerned with, whether with regard to choosing the arbitral tribunal that it undertakes, or defining the law applicable to the conduct of its procedures and subject matter, and then the parties are free to agree that the arbitration procedures are subject to a special law, which restricts Refer to the general law, except for what is not provided for in this special law.
It was settled in the judiciary of the Kuwaiti Court of Cassation that with the establishment of a special law that does not refer to the provisions of the public law except in the provisions of the private law, as it is not permissible to waste the private law in order to implement the public law because this is in clear contradiction to the purpose for which the private law was established. It is considered an exception to the legislation prior to it that limits the generality of its provisions, restricts them and copies them only in what was specified by it, and then each of them applies within the scope of the new legislation in what it was allocated to and the previous legislation in what remains for it of competence.
The effect of the agreement in the arbitration agreement on the submission of arbitration procedures to a special law
The ruling of the Kuwaiti Court of Cassation No. 671 of 2004 dated 11/23/2005, the Commercial Department, clarified the impact of the agreement in the arbitration clause on the submission of arbitration procedures to a special law, as it stated:
Grounds of the judgement
It was established in the papers that a dispute arose between the appellant and the company …….. regarding the subcontracting contract concluded between them and their desire to terminate it. They issued the arbitration agreement dated 12/21/2002, which agreed in its tenth article that the arbitration procedures held based on this stipulation shall be subject to the rules and provisions The Commercial Arbitration Center of the Gulf Cooperation Council states, and the Civil and Commercial Procedures Law in respect of what is not provided for in this stipulation, and therefore the will of the two parties was devoted to applying the rules and provisions of this center regarding the procedures and system of arbitration between them, and if the State of Kuwait agreed to establish the system of this center by Law No. 14 of 2002, then this special law became the one to be applied to the incident of the conflict, which restricts the application of the general law except for what is not provided for in this special law.
Since that was the case, and the text in Article 17 of the Regulations of this Center stipulates that (each of the parties may request the recusal of one of the arbitrators for reasons indicated in his request, and the request for recusal shall be submitted to the Secretary-General) and in Article 18 of the same regulations that (1) In the event of a request by one of the parties Refusal of an arbitrator The other party may agree to the rebuttal, and the arbitrator whose recusal is requested may relinquish the dispute and appoint a new arbitrator in the same manner in which that arbitrator was appointed. The response request within three days of receiving the request…) to the effect of which the way to request the recusal of the contested arbitrators appointed to resolve the dispute in accordance with the arbitration clause previously stated is to resort to the Secretary General of the Commercial Arbitration Center for the Cooperation Council States, and in accordance with its provisions in this regard.
Wording of The Court judgement
Whereas the appellant had deviated from this path and instituted her lawsuit requesting the dismissal of the arbitrators before the court, she had resorted to a party that was not competent to consider the dispute, and if the contested judgment adhered to this consideration, it would have applied the correct law and the obituary is sacrificed on him for these reasons without foundation.
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