Select Case Law
Last verified on 19 May 2024
The Jordan International Arbitration Centre endeavours to collate select case law from the Jordan courts to provide guidance towards the current standing of the Jordanian judiciary on pivotal issues of arbitration processes in the Kingdom of Jordan. This information is provided solely for general informational purposes and should not be construed as binding or advisory in nature. The Centre aims to present an impartial and balanced perspective and makes no guarantees regarding the completeness, accuracy, or reliability of the information. Users should consult with a qualified legal professional for advice specific to their circumstances. The Centre does not accept any liability arising from reliance on the information provided.
1. The arbitration panel has jurisdiction only over matters that the parties have agreed to arbitrate. This jurisdiction is an exception to the general jurisdiction of state courts. Therefore, if a preliminary issue arises that falls within the scope of the arbitration agreement, the arbitration panel has the authority to decide on it. However, if the issue is not covered by the arbitration agreement, it falls outside the jurisdiction of the arbitration panel, unless both parties jointly request the panel to decide on it, thus extending the panel’s jurisdiction to include it.
2. The proceedings before the arbitration panel are suspended according to the conditions and terms stipulated in the Civil Procedure Law. The suspension of the proceedings entails the effects provided for in the said law, in accordance with Article (35) of the Arbitration Law.
3. If, during the arbitration proceedings, an issue arises that falls outside the jurisdiction of the arbitration panel or if there is a forgery challenge concerning a document presented to the panel and criminal proceedings are initiated regarding the forgery or any other criminal act, the arbitration panel may continue to consider the subject matter of the dispute if it deems that resolving the issue or the forgery or the other criminal act is not necessary for deciding on the subject matter of the dispute. Otherwise, the proceedings are suspended until a final judgment is issued in this regard, which also stops the running of the time limit for issuing the arbitration award, in accordance with Article (43) of the Arbitration Law.
4. The Jordanian Arbitration Law addresses only one scenario for the suspension of proceedings: the suspension due to an issue falling outside the jurisdiction of the arbitration panel. Article (43) of the Arbitration Law sets a general rule that any issue falling outside the jurisdiction of the arbitration panel, whether related to a criminal matter such as a forgery challenge concerning a document presented to the panel or any other criminal act, or to a matter within the jurisdiction of the judiciary, allows the arbitration panel discretionary authority to decide whether the raised issue is necessary for resolving the dispute before it.
5. The legislator regulated the suspension of proceedings before the arbitration panel only, while the court competent to consider the annulment request is limited to the cases specified in Article (49/A) of the Arbitration Law. Furthermore, the general rule is that arbitrators derive their powers from the contract in which arbitration was agreed upon. If the contract is disputed among the parties and its annulment or termination is asserted, the arbitration panel cannot decide on the matter because it does not have the authority to rule on whether it constitutes an arbitration panel or not, or on the permissibility of referring the arbitration to it, or on the validity or invalidity of the agreement granting it the authority to adjudicate the dispute. The parties’ agreement to arbitrate within the contract has no effect unless all parties acknowledge the existence and validity of the contract.
6. If the parties refer their dispute to the first arbitration panel, which considered the dispute and issued its award, it implies that both parties have acknowledged the existence and validity of the agreements between them. It is not acceptable for them, after the issuance of the arbitration award, especially in the case where the first arbitration award is subject to an annulment request before the Court of Appeal, to request in another arbitration the annulment or termination of the agreements that contained the arbitration clause.
1. An arbitration agreement can be made prior to the emergence of a dispute, whether it is an independent agreement or included in a specific contract regarding all or some of the disputes that may arise between the parties. It is also permissible to enter into an arbitration agreement after a dispute has arisen, even if a lawsuit concerning it has already been filed before any judicial authority, in accordance with Article (11) of the Arbitration Law.
2. The arbitration panel decides on objections related to its lack of jurisdiction, including objections based on the non-existence, expiration, invalidity, or non-coverage of the arbitration agreement regarding the subject matter of the dispute. The panel may decide on these objections separately or combine them with the subject matter to decide on both together. These objections must be raised no later than the submission of the answer brief, in accordance with Article (21) of the Arbitration Law.
3. It is not within the jurisdiction of the appointed judge to determine whether the arbitration panel’s jurisdiction includes one subject matter over another or to reject the arbitration agreement on the grounds that it has already been decided by the judiciary. The arbitration panel has the jurisdiction for such matters. The appointed judge’s duty in the request is to address the issue of the existence or invalidity of the agreement to the extent necessary to decide on the request presented. If the appointed judge finds the arbitration clause to exist and be valid, and this enables them to determine the validity of the request, there is no fault in that.
4. An arbitration clause does not fall under the definition of a financial contract subject to tax according to Article (1) of Schedule No. (1) of transactions subject to fees attached to the Stamp Duty Law, as its subject is the performance of an act, not a financial right defined by a specific amount on which fees can be calculated.
1. Article (10) of the Arbitration Law stipulates that the arbitration agreement must be in writing; otherwise, it is invalid. An arbitration agreement is considered written if it is contained in a document signed by the parties or in the form of written communications, whether paper or electronic, or other written communication means that confirm receipt and serve as a record of the agreement. Any reference or attachment in the original contract between the parties to another document, such as a model contract or an international agreement that includes an arbitration clause, is deemed to be a written agreement unless explicitly excluded by the parties.
2. The principle of rebuttal evidence is established under the provisions of Article (59/6) of the Civil Procedure Law for both the main lawsuit and the applications submitted therein. Additionally, the acceptance of evidence, if necessary for deciding the lawsuit, is within the discretion of the trial courts according to Article (100) of the law.
3. Whoever seeks to invalidate what they have previously done, their effort is rejected, according to the provisions of Article (238) of the Civil Code.
4. From the provisions of Article (2) of the New York Convention, it is understood that contracting states must recognize written agreements in which the parties agree to refer any disputes that have arisen between them to arbitration, provided these disputes have a basis in specific legal relationships, whether contractual or non-contractual. If a lawsuit is filed before a court of a contracting state related to an agreement containing an arbitration clause, the court must refer the dispute to arbitration.
5. International agreements take precedence over national law, so the provisions of the international agreement should be applied before the provisions of Article (16) of the Law of Agents and Commercial Intermediaries, which designates the Jordanian judiciary as competent to consider any dispute or conflict arising from a commercial agency contract.
6. The arbitration clause included in the general terms specifies the German Arbitration Institute as the arbitration body, which does not contradict Jordanian law or public order. The agreement between the parties to remove the jurisdiction of the Jordanian courts and refer the dispute to arbitration as agreed by the parties is valid and must be enforced as long as the respondent insisted on it before addressing the subject matter, according to the Court of Cassation Decision No. 4164/2018.
1. The contract is the law and constitution for the contracting parties, governing the relationship between them according to the terms and conditions stipulated in that contract, in accordance with Article (87) of the Civil Code.
2. An action to annul an arbitration award is not admissible unless the arbitration award disregards the application of the law agreed upon by the parties to govern the subject matter of the dispute, in accordance with Article (49/A/4) of the Arbitration Law.
3. If it is evident from the terms of reference and the procedural rules signed by both parties through arbitration that the arbitration panel is committed to considering the dispute according to the Jordanian Arbitration Law and any substantive or procedural laws applicable to the dispute before it, then the panel is deemed to have adhered to the arbitration terms of reference agreed upon by the parties.
4. If the agreement is formal and executed officially, this does not render it immune from annulment or amendment; otherwise, the agreement to refer the dispute to arbitration would be rendered meaningless.
5. Defining the expert’s task is a substantive matter that falls within the discretion of the arbitration panel, and the Court of Appeal does not have oversight over this matter, as its review is of a formal nature according to the consensus of jurisprudence and doctrine.
6. The decision of the trial court is considered correct if it addresses all grounds of appeal with clarity and detail, outlines the main elements and facts of the case in its ruling, and provides a well-reasoned and adequately justified decision, in accordance with Articles (188/4) and (160) of the Civil Procedure Law.
7. Judicial precedent, based on Article (49) of the Arbitration Law, has established that the Court of Appeal, when considering an action to annul an arbitration award, does not review it as an appellate body and does not have the authority to assess the arbitrators’ judgments or the correctness of their reasoning. The court’s review is formal and does not delve into the merits of the dispute or oversee how the arbitration panel interpreted or applied the law, provided there is no breach of public policy.
8. Article (25) of the Arbitration Law requires the arbitration panel to treat both parties equally. Even assuming this requirement is true, the legislator did not include it as one of the grounds specified in Article (49) of the Arbitration Law.
9. Article (49/A/1) of the Arbitration Law pertains to the necessity of a valid and written arbitration agreement. Since the arbitration agreement in question includes a valid arbitration agreement that does not violate public policy, and the subject matter of the dispute is arbitrable, the agreement on the terms of reference is usually made after the formation of the arbitration panel and inviting both parties to agree on them.
10. Article (52) of the Arbitration Law states that arbitration awards have the force of res judicata and are enforceable. However, this does not make them judicial rulings issued by a court established under the judicial system according to the Jordanian Constitution, which in Article (27) states that the judiciary is independent and conducted by courts of various types and degrees, and all rulings are issued in the name of the King. Since the arbitration panel is not a type of court or judiciary, its awards are not issued in the name of His Majesty the King.
1. According to Article (3) of the Arbitration Law, the law applies to consensual arbitration and any arbitration agreed to be subject to this law, regardless of the nature of the legal relationship involved, whether contractual or non-contractual. Article (9) of the same law clarifies that an arbitration agreement is an agreement between the parties, whether legal entities or natural persons with the legal capacity to contract, to refer to arbitration all or some disputes that have arisen or may arise between them concerning a specific legal relationship, whether contractual or non-contractual. Article (10) stipulates that the arbitration agreement must be in writing; otherwise, it is invalid. An arbitration agreement is considered written if it is contained in a document signed by the parties. Article (12) mandates that a court presented with a dispute that is subject to an arbitration agreement must dismiss the case if the defendant raises the arbitration agreement before addressing the merits of the case.
2. The inability of the arbitrator to reach an arbitration award that resolves the dispute between the parties does not strip the agreement of its legal form and substance as an arbitration agreement. Articles (19) and (20) of the Arbitration Law address the procedures and mechanisms for appointing the arbitrator.
1. The principle is that the parties agree on the arbitration deadline, which is often set in the terms of reference and procedural rules. The arbitration panel must then issue the final award within this timeframe. Article (37/A) of the Arbitration Law stipulates that the arbitration panel must issue the final award within the period agreed upon by the parties.
2. Article (24) of the Arbitration Law states that the parties to arbitration may agree on the procedures to be followed by the arbitration panel, including their right to subject these procedures to the rules of any arbitration institution or center. The parties may also explicitly or implicitly agree to extend this period. Regardless of the form of this extension, it must be agreed upon by all parties or those authorized to agree to arbitration on their behalf. Additionally, the parties’ appearance before the arbitration panel, their involvement in the case, or the exchange of briefs or documents after the original deadline constitutes an implicit agreement to the extension.
3. Judicial precedent and Article (49) of the Arbitration Law establish that the Court of Appeal, when considering an action to annul an arbitration award, does not review it as an appellate body and does not have the authority to assess the arbitrators’ judgment or the correctness of their reasoning. The court’s review is formal and does not delve into the merits of the dispute or oversee how the arbitration panel interpreted or applied the law, provided there is no breach of public policy.
4. Article (34) of the Arbitration Law, concerning the appointment of experts, does not require the arbitration panel to administer an oath to the expert before commencing their task unless it is specified in the terms of reference to adhere to the Civil Procedure Law.
1. According to Article (9) of the Arbitration Law, if someone without the right to dispose of the matter consents to arbitration, the arbitration agreement is absolutely null and void by public policy. This means that any party can claim the nullity of the arbitration clause due to the lack of capacity of one of the parties, to avoid being forced to undertake procedures that would ultimately be null and void.
2. If a legal entity enters into an arbitration clause and it is found that its representative does not have the authority to sign the arbitration clause, but the legal entity’s agent appears before the arbitration panel and does not raise the issue of nullity, the right to claim nullity is forfeited if the legal entity itself had the authority to enter into the arbitration. This is considered as ratifying the arbitration agreement.
3. The arbitration panel decides on objections related to its lack of jurisdiction, including objections based on the non-existence, expiration, invalidity, or non-coverage of the arbitration agreement regarding the subject matter of the dispute. The panel may decide on these objections separately or combine them with the subject matter to decide on both together. These objections must be raised no later than the submission of the answer brief, in accordance with Article (21) of the Arbitration Law.
4. Legal doctrine has established that an action to annul an arbitration award is not an appeal and does not allow for a review of the merits of the dispute or an examination of the arbitrators’ reasoning. The judge in an annulment action does not assess the appropriateness of the arbitration award or the correctness of the arbitrators’ judgment in understanding and applying the law. The review stipulated in Article (49) of the Arbitration Law is formal and does not delve into the merits of the dispute, nor does it scrutinize how the arbitration panel interpreted or applied the law, provided there is no breach of public policy.
5. The decision of the trial court is considered correct if it addresses all grounds of appeal with clarity and detail, outlines the main elements and facts of the case in its ruling, and provides a well-reasoned and adequately justified decision, in accordance with Articles (188/4) and (160) of the Civil Procedure Law.
1. Despite the legislative recognition of arbitration as a partner to the judiciary under the provisions of the Arbitration Law No. (31) of 2001 and its amendments, and the establishment of its independence from the judiciary under Article (8) of the aforementioned law, which is known as the principle of non-intervention by the judiciary in arbitration, the legislator has permitted judicial intervention in the arbitration process up to the point of enforcing the award issued by arbitration. This intervention occurs in two specific roles to achieve effectiveness and integration between the two systems: the first is the supportive role for the parties to arbitration, including disputants and arbitrators, and the second is the supervisory role over arbitration awards, where the judiciary exercises its legal authority to annul the arbitration award entirely or partially or to order its enforcement.
2. One of the most prominent examples of the judiciary’s supportive role in the arbitration process is the intervention of the national judge, at the request of one of the parties to the arbitration agreement, to issue preliminary decisions before the commencement of arbitration proceedings by selecting the arbitrator and forming the arbitration panel in accordance with Article (16) of the Arbitration Law. However, the intervention of the Jordanian judge in performing this supportive and auxiliary role in the matter of forming the arbitration panel is contingent upon the parties not agreeing on a specific method for appointing the arbitration panel, as inferred from the beginning of Article (16) of the Arbitration Law, or not delegating this task to a third party, such as an arbitration center or a designated arbitration institution within Jordan or abroad, as inferred from the wording of Article (5) of the Arbitration Law. If the arbitration parties agree to designate a specific institutional body to handle the procedures for forming the arbitration panel and to apply its procedures and rules during this process, such as agreeing to delegate the International Court of Arbitration to do so, this agreement is valid and not contrary to the law or public policy. Consequently, the national judiciary (the judge appointed by the President of the Court of Appeal) does not have the authority to intervene in the matter of appointing the arbitrator, and the appointed judge must respect and uphold this agreement by dismissing the request submitted to him to appoint the arbitrator due to lack of jurisdiction.
3. Any specific agreement regarding arbitration that designates a different law or rules than the Jordanian Arbitration Law must be given priority in application. If no such agreement exists, the Jordanian Arbitration Law applies. Therefore, the contract booklet for the contract of employment includes a final section related to additional special conditions, the determination of which is left to the contracting parties’ discretion. Some fields within this final section—including the field related to the dispute resolution mechanism—are left blank. As a result, the appointed judge must review the entire contract to fulfill his legal duty to verify the validity of the arbitration clause on which this request is based, to ensure it is not void, and to confirm its applicability to the subject matter of the request without the application of any other provision. This is especially relevant given the prior argument by the applicant’s representative in a previous request citing a different provision with an alternative arbitration clause. The judge must also verify that there have been no subsequent amendments to the contract to make a proper decision regarding his jurisdiction over the current request and ultimately make the appropriate decision regarding the request to appoint the arbitrator.
1. The key consideration in agency is the fulfillment of its conditions, including the principal’s signature, authentication of the signature, and the specific authority granted to the agent by arbitration bodies. Typically, the power of attorney is executed before the agent takes any action on behalf of the principal. Consequently, the agency in this context authorizes the agent to represent the principal before any arbitration body as long as the principal has accepted the agent’s representation in the arbitration proceedings.
2. The general principle in addressing grounds for annulment is that the court should provide an independent response to each ground. However, if the court finds that these grounds revolve around a single legal point or are interrelated, this does not render its judgment contrary to the law, as established by the jurisprudence of this court.
3. Article (49/A/4) of the Arbitration Law considers the exclusion of the arbitration panel from applying the agreed-upon law as a ground for annulment. This ground is not present in the arbitration award in question because the arbitration panel adhered to applying what was agreed upon in the terms of reference and procedural rules, which is the Jordanian law.
4. Article (36/C) of the Arbitration Law states that in all cases, the arbitration panel must consider the contract terms at issue when deciding the subject matter of the dispute and must take into account the current trade customs and practices of the relevant type of transaction, as well as the past dealings between the parties. Therefore, the failure to apply the contract terms agreed upon by the parties does not constitute the exclusion of the law that the parties agreed to apply and does not lead to the annulment of the award in accordance with Article (49/A/4) of the law.
5. The term “contract terms” mentioned in Article (36) of the Arbitration Law does not refer to a law that the parties have agreed to apply, such as the law of a specific country or a particular legal system. Instead, it refers to specific legal rules that the parties have agreed to subject the contract to, based on the principle of party autonomy. This meaning becomes clear when comparing paragraph (C) of Article (36) with paragraph (A), which states, “The arbitration panel applies the legal rules agreed upon by the parties to the subject matter of the dispute. If they agree to apply the law of a specific country, the substantive rules of that law will be followed without applying the conflict of laws rules.” Therefore, the legal rules agreed upon by the parties must differ from the “contract terms” mentioned in paragraph (C). Otherwise, the text would contain a repetition that the legislator avoids.
1. Article (16) of the Arbitration Law specifies the methods for selecting arbitrators in the event the parties do not agree on their selection.
2. If the representative of the party does not raise the objection in accordance with Article (21/B) of the Arbitration Law, the right to raise it is forfeited.
3. The decision of the arbitration panel is valid if it includes the names and addresses of the parties and arbitrators, a summary of the arbitration agreement, a brief of the parties’ requests, statements, and documents, the pronouncement of the award and its reasons, the arbitrators’ fees, and arbitration costs and their distribution among the parties, and if the arbitration award is reasoned, in accordance with Article (41) of the Arbitration Law.
4. The parties to arbitration may agree on the procedures to be followed by the arbitration panel and the arrangement of the parties’ roles in submitting briefs, evidence, pleadings, and the means of presenting such evidence. The parties may also refer to the rules followed for this purpose by any arbitration center within or outside the Kingdom, in accordance with Article (24) of the Arbitration Law.
1. According to Articles (9) and (10) of the Arbitration Law, an arbitration agreement is an agreement between the parties, whether legal entities or natural persons, to refer all or some of the disputes that have arisen or may arise between them regarding a specific legal relationship, whether contractual or non-contractual, to arbitration. The arbitration agreement must be in writing; otherwise, it is invalid. An arbitration agreement is considered written if it is contained in a document signed by the parties, or in the form of written communications, whether paper or electronic, or other written communication means that confirm receipt and serve as a record of the agreement. It may also be referenced or attached in the original contract between the parties to another document, such as a model contract or an international agreement that includes an arbitration clause, unless explicitly excluded by the parties.
2. Judicial precedent and arbitration doctrine have established that the arbitration agreement enjoys the principle of independence from the original contract, thereby constituting an equivalent agreement to the primary contract, according to the Court of Cassation Decision No. (4472/2019).
3. An arbitration clause agreed upon in a specific agreement or contract is not presumed to exist in similar, subsequent, or consecutive contracts between the same parties unless its existence is explicitly agreed upon in one of the forms prescribed in Article (10) of the Arbitration Law.
4. The trial court must address all grounds of appeal with clarity and detail, in accordance with Article (188/4) of the Civil Procedure Law.
1. Article (12/A) of the Arbitration Law states: “The court to which a dispute is referred that is subject to an arbitration agreement shall dismiss the case if the defendant raises this objection before entering into the merits of the case.”
2. The legislator has affirmed the distinctiveness and independence of the arbitration system from any other dispute resolution system. The court before which the case is presented must dismiss the case when the arbitration objection is raised and its existence and validity are established, compelling the parties to resort to arbitration.
3. It is established in the jurisprudence of this court that a settlement is essentially a reconciliation between the parties, and according to Article (647) of the Civil Code, a settlement agreement resolves the dispute and terminates the litigation between the parties by mutual consent. The scope of the settlement’s effect is limited to the rights it addresses. Therefore, the parties’ agreement to settle a previous dispute and enter into a settlement and release agreement (reconciliation) implicitly constitutes an agreement to abandon the arbitration agreement for the dispute in question. The release (settlement) is considered a new agreement, and any dispute arising from it is not referred to arbitration under the original contract, and the arbitration panel does not have jurisdiction to hear the dispute due to the absence of an arbitration agreement after the settlement agreement was made, according to the Court of Cassation Decision No. (5490/2021).
4. Article (5) of the Municipalities Law, under which the agreement was concluded, states that one of the tasks and powers of the municipal council is to contract with municipalities and other entities. According to Article (5/B) of the same law, the council exercises the aforementioned powers through its employees and agents. The president, under Article (7) of the same law, has the authority to sign contracts and agreements approved by the council. It is inferred from this that it is not within the exclusive functions of the mayor to sign contracts and agreements related to the municipal council. This authority falls under the exclusive jurisdiction of the council, which has the right to delegate this authority to its president after approving these agreements or contracts. Therefore, the mayor’s authority in this matter is an executive power contingent upon the council’s approval and delegation to sign these contracts and agreements before the date of signing.
5. The release agreement in question is considered a contract, and for any contract to be valid, it must be executed by those with legal capacity and authority over the contract’s subject matter, whether they own the subject matter or act as agents for the owner, through contractual, legal, or judicial representation. If this authority is not present, such as in the case of a person acting on behalf of another without authorization or an agent exceeding the limits of their authority, the contract is considered suspended pending the approval of the owner. If the owner approves it, its effects are retroactively valid from the date of its conclusion. Although the mayor is a person with legal capacity, he did not have the authority over the subject matter of the contract at the time the agreement was made, as the legislator limited the power to sign contracts and agreements to the municipal council or its delegate, not to the mayor. Furthermore, there is no evidence of any delegation from the municipal council authorizing him to sign, as evidenced by the case documents. Therefore, the contract is considered suspended, and if not approved, it is void according to Article (175) of the Civil Code.
6. Although the mayor is a person with legal capacity, he did not have the authority over the subject matter of the contract at the time the agreement was made, as the legislator limited the power to sign contracts and agreements to the municipal council or its delegate, not to the mayor. Furthermore, there is no evidence of any delegation from the municipal council authorizing him to sign, as evidenced by the case documents. Therefore, the contract is considered suspended.
1. Neither the Arbitration Law nor the Civil Procedure Law defines the concept of the reasoning process for an arbitration award or a judicial ruling. Article (41) merely requires the inclusion of reasoning in the arbitration award, and similarly, Article (160) of the Civil Procedure Law mandates the inclusion of reasoning in a judicial ruling as a formal requirement. However, the jurisprudence of the Court of Cassation has addressed the concept of reasoning for judicial rulings in several decisions.
2. In Decision No. (1978/227) of the Court of Cassation, it was stated: “The Civil Procedure Law requires the court to provide reasoning for its rulings and to indicate the legal arguments and factual evidence on which it based its ruling. It is not sufficient to provide ambiguous or vague reasons. The court must also evaluate the documents presented in the case, and if it fails to do so, its ruling is considered deficient in reasoning and subject to annulment.”
3. In Decision No. (1999/2521) of the Court of Cassation, it was stated: “When the Court of Appeal upheld the decision of the magistrate judge to correct the plaintiff’s name without explaining its reasons for disregarding the evidence presented by the appellant and accepting the evidence presented by the respondent, it violated the provisions of the law. Its decision is thus flawed due to a deficiency in reasoning and justification, warranting annulment.” Arbitration doctrine also emphasizes that it is the duty of the arbitrator or arbitration panel to clearly state the factual and legal reasons upon which their decision is based and which formed their conviction.
4. Given the specific nature of annulment actions and the narrow scope of procedural review conducted by the Court of Cassation on arbitration awards, it is not appropriate to apply the same standards of reasoning required for judicial rulings to arbitration awards. Arbitration doctrine supports this view, citing the possibility that arbitration awards may be issued by an arbitrator or arbitration panel that is not legally qualified or lacks sufficient experience in drafting and formulating decisions and awards. Additionally, some functions of judicial reasoning differ from those for arbitrators, as judicial rulings are subject to substantive and procedural review by higher courts, whereas arbitration awards are final. Annulment actions do not entail a reconsideration of the arbitration’s merits or its substantive justice.
5. Judicial defects fall into two categories: procedural defects and errors in judgment. Procedural defects may be inherent or arise from prior actions that render the ruling invalid. If an arbitration award overlooks one of the criteria considered by the Court of Cassation, it is deemed deficient in reasoning and subject to annulment, according to Decision No. (2787/2020) of the Court of Cassation.
6. It is the duty of the arbitration panel to clearly, precisely, and coherently outline the reasons leading to their interpretation of the relationship as a brokerage contract rather than another type of contract. It is insufficient to merely state that they interpreted the contract as a brokerage agreement. Each type of contract has distinct elements and conditions that the arbitration panel must articulate and explain, including why they dismissed other interpretations. Regardless of the correctness of their interpretation, they must provide justifications for their conclusions and address the evidence presented in the case, applying it to the facts and discussing the parties’ arguments regarding the material facts of the case. This process aims to reach a proper understanding of the nature of the relationship, whether it is a brokerage contract or otherwise, and then classify the relationship according to their conviction and establish the corresponding legal effects. While the arbitrator has full authority to interpret and explain contracts and discern the parties’ common intent, the conclusion must be reasonably and acceptably derived from the legal evidence presented in the case, following a comprehensive discussion of the facts, evidence, and arguments.
7. The arbitrator’s work involves a judicial function, as they resolve disputes that the parties agree to submit to arbitration, and their rulings have the same binding effect as court judgments. Therefore, the arbitrator must adhere to judicial principles in conducting the arbitration and resolving disputes. Like a judge, the arbitrator must analyze the facts and provide reasoning for the award according to their perspective. Consequently, an arbitration award must include reasoning that reflects an evaluation of the facts, an interpretation of the evidence, and an application of the law based on the arbitrator’s judgment. This independent formulation of the decision fosters confidence in the arbitration system as an effective alternative dispute resolution method. If an arbitration award fails to meet these considerations and overlooks the necessary criteria for providing reasoning, it is deficient in reasoning and subject to annulment.
1. Article (16) of the Arbitration Law does not address whether the competent judge tasked with appointing an arbitrator has the authority to review the arbitration agreement to verify its validity, existence, and scope, or if the judge’s role is limited to a superficial verification of its existence and appointing the arbitrator accordingly.
2. Legal doctrine on the judge’s authority to appoint an arbitrator is divided into two views: The first supports the competent judge’s authority for a complete review of the arbitration agreement. If the judge finds that the arbitration agreement does not exist or is invalid, they can refuse the request to appoint an arbitrator without declaring the arbitration agreement null and void. The second view prohibits this comprehensive review, restricting the judge’s authority to verifying the existence and apparent validity of the arbitration agreement without delving deeply into the matter. This is based on the justification that such issues fall within the jurisdiction of the arbitration panel, which is responsible for ruling on them according to the principle of competence-competence.
3. Jordanian arbitration doctrine favors the first view. If a request is made to the competent judge to appoint an arbitrator and the opposing party challenges the validity of the arbitration agreement, the judge must address this objection rather than merely verifying the superficial existence of the arbitration agreement and appointing the arbitrator. The judge is obliged to consider the existence and validity of the arbitration agreement. If it exists, it must naturally be valid; because nothingness begets nothingness. If the court finds the arbitration agreement invalid, it must refuse to appoint the arbitrator, as the appointment is based on the existence of the arbitration agreement, which grants the arbitrator their powers. Without the arbitration agreement, the arbitrator cannot be appointed.
4. There is no provision in the Jordanian Arbitration Law that prevents or restricts the competent judge from exercising this authority. Since the principle in matters is permissibility, allowing the competent judge to conduct a complete review of the arbitration agreement in terms of existence and validity enhances the effectiveness of the arbitration system as a whole. A judge’s decision to dismiss the appointment request before the arbitration proceedings begin, due to the absence or invalidity of the arbitration agreement, prevents prolonging the arbitration process unnecessarily and avoids the risk of the arbitration award being annulled later due to the invalidity or non-existence of the arbitration agreement. This approach ensures swift justice, cost efficiency, and prevents unnecessary expenses. It is the duty of the competent judge to verify the legality and validity of the basis for their role in the appointment process. The judge’s jurisdiction is contingent on the existence of a valid arbitration agreement. Otherwise, the judge must refrain from deciding on the request. Thus, the competent judge must thoroughly examine the arbitration agreement to ensure a valid decision on the request before them. If the judge concludes that the arbitration agreement does not exist or is invalid, they must not declare the arbitration agreement null and void but should simply issue a decision dismissing the appointment request.
5. From Articles (9) and (10) of the Arbitration Law, it is understood that the arbitration agreement is, in fact, a standalone agreement independent of the contract it is included in. Therefore, it must meet all the general contractual elements required for a valid contract, including consent, subject matter, and cause, in addition to the requirement that it be in writing for its legal and factual validity. When these conditions are met, the arbitration agreement remains valid, binding, and enforceable between the parties, even if the contract containing the arbitration clause is declared null, rescinded, or terminated. The arbitration agreement stands as an independent contract equivalent to the primary contract, as established by the Court of Cassation Decision No. (4472/2019).
1. Arbitration is a special method of resolving disputes, with the general rule being that the judiciary is the competent authority for dispute resolution. However, the law allows contracting parties to agree to refer their disputes to arbitration. This can be done either through a clause in the contract, known as an arbitration clause, or through an agreement made after the dispute has arisen, called an arbitration submission. The parties define the scope of this agreement and determine who has the right to resort to arbitration in the clause or submission.
2. Regarding the government or public institutions represented by the Civil Public Attorney, notifications should be delivered to the Civil Public Attorney, one of their assistants, or the head of the office, in accordance with Article (10/1) of the Civil Procedure Law.
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