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[Music] quickly in arabic for the arabic speaker then we will move to the english s so please everyone who would like to listen to us in arabic you have an interpretation button down you can click on the button and they will be able to listen to the other channel in arabic welcome to the arbitration uh close in purchase orders uh is it legally binding if it's not signed uh one of webinars uh we are doing in our branch uh i'm gonna go uh my name is sad ghazi i'm the vice chair of the uh church of applicators cutter branch i'm gonna walk you through the uh presentation i'll make you introduction quick introduction about today agenda so the speaker of today is dr nasir al-attah he's the managing partner for many partners uh in doha qatar and also he is the chartered chief arbitrator branch uh i'm gonna give you an overview quick overview of the uh cir qatar branch we have established and officially launched in 2018 we actually established in 2017 um a total number of board members currently are 15 we have around total of numbers 322 members currently in qatar we have a partnership and agreement with uh our partner qatar international court and dispute resolution center who are they are hosting us under the qfc uh the board as you can see the committee uh uh uh in 2020 we have two uh 22 we have to a new committee where dr nasser has been elected as a chairman and you can see also some new faces on the board as as shown our agenda for today we will uh uh ask the announcer to make his presentation then we will be later taking the questions and answers please uh note that the questions and answers will be asked in the q and a [Music] button so you can submit your question during the presentation itself but we will be asking all the questions to the speaker at the end so let me introduce to you dr nasir uh aladda dr nasser is an accomplished and highly recognized lawyer and qatar and mean region he having studied and practiced law executively throughout the wallet he specialized in drafting and review of major construction contracts and practices uh the field of international investment law and international trade and dispute resolution having been chosen for the world trade organization roosters of panelists and warlord trade organization wto he is also renowned for his skills uh as a commercial negotiator mediator and arbitrator in the arbitration and the alternative dispute resolution adrs he is full-time assistant professor teaching uh the areas of public uh international law edr and the investment investment arbitration at qatar university recently uh he has been elected as the chair of the charter fabricators qatar financial center the branch he has an academic education of a phd of an international investment arbitration from the university of manchester uk gdl and international negotiation mediation and dispute settlement from harvard's law school in the u.s he has also an llm from graduate institute of international and development studies in geneva swetherland and llb from qatar university in qatar so uh without being further delayed i will give the floor to dr nasser please welcome him so dr nasser the floor is yours thank you assad very much for this introduction i would like also to thank to thank the cir for their efforts not to forget to our esteemed attendees today as i know the 3 30 the time now is a busy uh rush hour for the people who are working now but i would like to extend my thanks for the people who are attending today so um arbitration close ambitious orders is it legally binding if it's not signed these questions came to me often last few months so um the practices of the world of commerce show that often the contracts are undertaken without exhaustive documentation only testimony of the supplier of such contract are basis order tax invoices or exchange of emails issued by the supplier of or services providers these documents typically contain terms and conditions such as arbitration clauses in case of potential dispute and can be with no signatures an arbitration agreement is the agreement to refer their distributes to arbitration which is expressly or impliedly spelled out from a clause in an agreement separate agreement or document correspondence exchange between the parties moreover an arbitration agreement can be derived from the exchange of means of communication that communication including electronic means if it can prima facie be shown that the parties are at item or in in a legal agreement even though the other party may not have signed a formal contract it cannot absolve a party from the liability under the agreement in a brief the question arose on the existence of an arbitration agreement its validity and its operative included in precious orders or which call the general terms and conditions which not been signed by the parties or there is invoices of or approve of delivery statement in light of new york convention 1958 modern law 1985 and december 2006 and the qatari arbitration law in 2017. can we move to the other slide side so as we stated before there is three areas of a study in our webinar today either the new york convention or the modern law or the qatari law and arbitration and civil law pursuant to article 2 1 paragraph 1 of the 1958 new york convention reason the arbitrator convention states that to recognize an agreement of writing under which the parties undertook to submit arbitrable differences to arbitrate and article 2 paragraph 2 of the conviction specified that an agreement and writing included in the arbitration clause in a contract or an arbitration agreement signed by the parties or contained in an exchange letter of or telegrams we have had uh get a lot of cases studies all over around the world we got cases from united states we got cases from korea we have get cases from india well indian have a special understanding for the virtuous orders and the arbitration clause in it we have also got some cases from italy and france and we will conclude our studies today with what is qatari law position can we move to the second page please um yeah so the first case we need to envisage about the can look at the lancaster inc versus lark international littered and that have been seen in the district court of the united states a kind a new york company sent birch's order to lark a hong kong company that acts as a buying agent in asia for assorted clothing for sears the orders contained in an arbitration clause lark did not sign the orders but helped can select pro producers in the philippines to fill the orders when the orders were watched can moved for arbitration for its distribute with lark overpayment lark asserted that there was no contract because it didn't sign the orders hence couldn't be made to comply with the arbitration clause however the court decision the parties are ordered to go to arbitration there was a binding agreement under section 2 to 206 of the uniform commercial code an offer to make a contract shall be construed construed as inviting acceptance in any manner and an order or other offer to buy goods for brand or current shipment shall be construed as inviting acceptance neither by prompt promise to ship or by the prompt prompt or current shipment of confirm confronting or non-confronting goods lark accepted by subcontracting for production of the goods and the shipment of which it monitored hence the contract and this arbitration clause are presumed valid there is another case which is there is seller and versus buyer and it was a final award and that was an icc case number 20184 the sole arbitrator pointed out that the spa had been concluded through an exchange of buyer's purchase order and sellers sales confirmation both sent by email sellers sales confirmation exceptionally referred to sellers general term terms and conditions which contain the arbitration clause the sole arbitrator agreed with the set of that an arbitration clause in a sale or bearish's confirmation met with written form requirement of article two paragraph two if the confirmation had been subsequently accepted by means of another communication of item from the party which had received the confirmation to the party which had sent it this had happened in the present case since the parties had been in continuous communication by email following the delivery of the goods and buyer had challenged none of the conditions and sellers general terms and conditions can we move to the other slide and now we are moving to italy judgment of september 1 1977. court of a bill in florence an international council for commercial arbitration the court of appeal of florence held that arbitration closes and purchased orders signed by an american buyer and sent to an italian seller who did not sign or return them constituted a valid agreement to arbitrate because subsequent invoices that referred specifically to the basis order were signed by the sir the court observed that under article 2 of the intention the intention of the parties need not to be expressed in the same document and the agreement may be contained in the exchange of letters or telegrams there is also cases of jurisdiction based on unicef model law 1985 and its amendments 2006 the article 7 in model arbitration law stated that the arbitration agreement shall be in writing and then it is stated an arbitration agreement and is an arbitration agreement is in writing if its content is recorded in any form whether or not the arbitration agreement or contract has been concluded orally or by conduct or by other means and that open up the matter of the arbitration to not be an explicit the requirement that an arbitration agreement be in writing is met with by an electronic electronic communications if the information contained therein is accessible so as to be usable for subsequent reference electronic communication means any communication that the parties make by means of data message data message means information generated sent received or stored by electronic magnetic optical or similar mean in u.s cases we have a case which called the parties called universal oil product company versus scm corporation the court being of the opinion that the defendant's motion for a stay of the action pending arbitration should be granted for the reasons that one after a survey of defendants chicago plant made by blantiff on its own initiative and after some initial negotiations plaintiff submitted to defendant a written proposal dated 18 september 1976 to furnish a catalyst fairness for the price of seventeen thousand one hundred or seventeen thousand dollar rated increase to eighteen thousand dollars as a result of inclusion of additional minor items this proposal wasn't signed by either parties thereafter under date of 7th march 1968 defended sent to blenter a written purchase order signed by defended purchasing agent referring to plaintiff's proposal of 18 september 1976 and ordering the fairness subject to the conditions on the reverse side of the purchase order paragraph 9 of which reads any controversy or a claim arising arising out of or relating to this contract or the breach there thereof shall be settled by arbitration pursuant to defendant purchase order of 7th march 1968 plaintiff shipped the fairness to defend its chicago planet where it was installed after some difficulties in attempting to get the fairness to function properly it finally exploded on 26 november 1968 causing injury to some of defendants employees and rendering the furnace useless a distribute has arisen between the parties plaintiff demanding that defendant be the purchase price of the fairness and defendant claiming that the fairness was defective and not properly designed and constructed defendant has demanded arbitration of the controversy in ance with the bar graph line of the purchase order uh which had been agreed on the 7th of march 1968 and the plaintiff has refused to proceed to arbitration and has brought an instant action in the court to recover the purchase price of the furnace defendant birch's order of 7th of march 1968 being a counteroffer rather than an acceptance of plaintiff's proposal in september 1976 corbyn on contracts created a plaintiff a power of acceptance which was exercised by blended performance in shipping the fairness pursuant to the terms of the precious order since the instant action involve a controversy or claim arising out of or relating to the afforded contracts as to which the parties have agreed to submit to arbitration defendant is entitled finally to an order staying proceeded proceedings hearing pending arbitration and this case is a reference and the precedent in the u.s courts the other case is um um yeah we have we have finished that side we have to move to another case sorry doctor which case you're gonna back go back no we finished this we finished this just now okay so in the southern enameling corporation versus pre-general bronze corporation where a seller of construction material was directed by telegram to enter buyers number bush's order and later and later confirming telegram stated that versus order would be issued the court held that seller's purchase order and not the telegram or letter constituted the completed contract and subsequently seller was bound by the terms of the order which stated that new york law should govern construction of the contract and that arbitration was a condition precedent to any right of legal action and the other case the trends to fashion in corporation a valia group um where oral precious orders were subsequently honored by a written contract containing broad arbitration clause and where bayer did not object to the contracts and accepted the sellers good and paid for them courts held parties entered into binding and enforceable written agreement to arbitration even though purchaser did not sign the agreement now we are coming to india and i am sure that our indian guests today they will be surprised because we have two approaches there is approach number one which is india cases on the validity of arbitration flows in vicious orders and in voices and the most prominent case is my cash corporation versus bikoty exports and ores whereas delhi high court concluded that it is true that letters telegrams or other means of communications could also contain an arbitration agreement but that requires proof that such letters telex telegrams etc were exchanged by the parties that is mutually delivered and actually received by each other therefore the fact of delivery of such invoices and the receipt of the same was considered sufficient for the purpose of establishing the existence of arbitration agreement there is another important case which is luis fernandez that versus jiva talal and orr's delay high court under the arbitration act 1940 took into consideration the conduct and the commercial dealing of the party to conclude the prima facie uh the precious orders or invoices demonstrates that the parties have acted upon the same and therefore the existence of the arbitration agreement was sufficiently established and we have another case which is the smeta conductors littered versus euro alloys let it and the supreme court in the supreme court of india and that is established in 2001. the india supreme court has enforced an arbitral award notwithstanding the fact that arbitration agreement was neither signed nor contained in an ex exchange of documents it held that the party in particular by opening letters of a credit and reliance on the contract and invoking the contract force major clause accepted the terms of the written contract including the arbitration clause the other approach of the indian cases which the invalidity of the arbitration clause ambitious orders and the invoices and we have an established cases for that as well can we move to the next uh slide please um we have a case which is uh the the the plaintiff or the claimant concrete additives and chemicals versus sn engineering services and recently the pompeii the bombay high court in a judgment delivered on 17th january 2022 held that the tax invoices containing an arbitration clause or agreement even though accepted by the respondent doesn't constitute a valid arbitration agreement and to give you a little background an application was filled under section 11 of the arbitration act in india for appointment of the an arbitrator on account of certain distributes between the buses the basis the purchase order issued by the respondent did not contain an arbitration clause or indicate that there is an arbitration agreement between the bartons while executing these bearish orders the applicant issued tax invoices these tax invoices and the printed forms contained certain terms and conditions one of which was the arbitration agreement the question which required answer was whether the said clause and the tax invoices would cons constitute a valid and binding arbitration agreement between the parties as contemplated under section 7 of the act the judgment and the court held that the assurance of tax invoices by the applicant is a unilateral act on the part of the applicant and the clause as contained in the said tax invoices doesn't indicate that there is an arbitration agreement between the parties as contemplated under section 7 of the act and the second the acceptance of tax invoices represent the acceptance of the delivery of the goods and the payment to be made under the same invoices and doesn't indicate any conscious agreement between the parties to refer the distribute for the education or arbitration the contract between the parties is poor born under the purchase orders and the said purchase orders do not contain or make any reference to an arbitration agreement between the parties for these reasons the court held that there is no arbitration agreement between the parties and the application was rejected yeah we have another case which is surya processors private limited versus sri jai gurudev textile agencies and this the delhi high court took into consideration the conduct and the commercial dealings of the parties to conclude the primate that prima facie the voices demonstrate that the parties have acted upon the same and therefore the existence of the arbitration agreement was sufficiently established now we finish from our tour international tour among the uh all the western and eastern countries and we have seen that most of them are accepting the basis orders and the and the uh arbitration clause in it whether is it signed by the other party or not since there is direct communication between them about it now what is the position of the qatari law the arbitration agreement in the qatari law stated in the article 7 of the arbitration law in 2017 which is stated that the arbitration agreement is the agreement of the parties whether they are legal persons or natural persons having the legal capacity to enter into contracts to refer to arbitration to decide on all or some disputes that have arising or that might arise between them in respect of a defined legal relationship whether contractual or non-contractual the arbitration agreement may be a separate agreement or in the form of an arbitration clause in a contract and article 3 and the paragraph 3 stated that the arbitration agreement shall be in writing otherwise it shall be invalid the arbitration agreement shall be considered inviting if it is contained in a document signed by the parties or and we have to underline or here it is in the form of paper or electronic correspondence or by any other means of communication which allows for written proof of receipt the arbitration agreement is considered to fulfill the requirement of peeing and writing if one of the parties claims that such agreement exists in the statement of a claim or the statement of defense provided that the other party doesn't deny such existence in its defense and they would like to have uh to have to to stop a little bit in the bar graph four the paragraph for in my opinion it is the most flexible um barograph in all the arbitration laws in the middle east means that if the one of the parties who either the claimant or defendant submitted their defense or statement of claims or the defense in the court no objection from the other party then the that the the other party has not the right to deny the existence of the arbitration clause based on this article um and they would like to hear the the the qatari legislator on on on taking the initiative on this matter now if we move to the to the civil code can you move to the other slide article 4 64 of the civil code stated that without without prejudice to any special formalities that may be required by law for the conclusion of certain contracts a contract shall be concluded from the moment an offer and its subsequent acceptance have been exchanged if the subject matter and cause of such contract are deemed legal and article 65 of the same code stated that in its first paragraph an intention shall be expressed orally or in writing by a commonly used sign by actual consensual exchange and also by conduct that in the circumstances leaves no doubt as to its true meaning and this is very important a declaration of intention may be implied when neither the law nor the agreement nor the nature of the transaction requires that such declaration be expressed so ing to the qatari law and the above stabilizations we believe that the arbitration clause in precious orders accepted by the by the other party by performance of the bushes order itself is considered a valid and operative of arbitration agreement uh written uh an arbitration agreement may also be approved by a written editor signed by the parties and may be proved by what the parties exchange in the form of paper or electronic messages or in any other form made by means of communication that allow proof of receipt and writing although the proof or denial of the mutual consent of the contractors to arbitration is a matter of merits by which the court appreciates without the court of causation control provided that its appreciation being consistent with the constant and the documents and papers the arbitration agreement like any agreement made by the con convergence of two mutual consents which indicates that the agreement to arbitration may be explicit by the parties expressly declaring their intention to agree to arbitration neither either as a close in the contract or as agreement submission an explicit declaration of intention may be made by taking a position that doesn't leave the circumstances of the situation into question a significant significance as to what is intended the judge shall be independent by estimating whether or not the agreement has been obtained or not and on conformity of the acceptance to the offer as he draws from the evidence before him as a conclusion practices reveals clearly that national court have sought to adapt to varying and conflicting approaches first approach is the arbitration-friendly approach and where courts relies on the intention conduct and the nature of commercial dealings between the parties to conclude the existence of an arbitration agreement printed on an invoice or purchase orders and executed by the other party court and when i mean executed not signing executed mean he have done what's been agreedable court hold that the arbitration flows in an invoice merely indicates an offer that is required to be accepted to constitute an arbitration agreement under the arbitration legislations the evidence of consent had been found in the party's conduct in performing the contracts in situation where a party doesn't sign the contract or retain a written confirmation nevertheless perform its obligations many courts have held that such conduct amount to a target acceptance of the terms of the contract including the arbitration agreement and now we will move to the non-arbitration friendly approach and we have seen that in some jurisdiction uh around qatar like in kuwait for example and uae and morocco so in uh for the judiciary which considers arbitration to be an exceptional distributed resolution since it takes away jurisdiction from the judiciary to resolve the disputes the arbitration agreement must be explicit and not implicit thus the arbitration agreement must be interpreted normally ingly the arbitration clause ambitious orders issued by one party and performed by the other party may face obstacles to its validity and execution to the judicial approach in kuwait for example arbitration stated that arbitration is an exceptional way of litigation the scope of this exception must be clear explicit and an equivocal and that was a judgment in kuwaiti court in 1992 in uae the decision in the judiciary of the court is the is that the right litigation is legitimate right annexed by the constitution to all in order to defend a right or to defend and the that the principle is that the jurisdiction of the judiciary is a general jurisdiction that extend to any dispute that occurs within the state or affect the right of one of the citizens in ance with the general rules of the jurisdiction of the court and then it is stated that except for what is expected is executed by the law by a special provisions and within the neuroscope specified by that or in a matter matters in which conciliation is permissible and that the litigant agreed on arbitration and that agreement was stated in an express form expressing a valid will be give up the right to litigation and to choose arbitration as a is of the distribute that has arisen or may arise future and that was come from the federal supreme court civil and commercial judgment in in 2009 in morocco the agreement to arbitrate is an exception that is interpreted normally and arbitration can only be resorted to if there is an ex-risk agreement on arbitration and that being produced in morocco in 2010 i think we have covered most of it sad thank you very much for listening and i really appreciate your attendance for today's precious order and arbitration clause in it thank you so much doctor so before we move to the questions unanswered i have some questions first i would like to ask you uh myself then we have uh some other questions if the time allows also on the uh q and a section has been written by some of the attendees uh so the first question i'd like to ask you and uh on the same matter so now after this discussion does the qatari laws actually consider the implicit arbitration agreement in general um well to be honest with you chad we have a running case now in the courts uh which we have the same the same concept on what is webinar today on in my point of view i think the civil code the arbitration code support that the civil code which contains the general rules of agreement allows for the implicit exhibition of intent and the implicit agreement and the concept of writing an arbitration agreement has a broad concept that includes uh what is contained in correspondence even electronic as well as the performance of the contract that contains an arbitration clause without objection or reservation to it yes okay thank you doctor so basically now when the outcome of this will be so if the the performance of the contract which is containing arbitration clause uh this performance uh without objection or reservation to to it accepted by the application tribunal or the court and the battery laws okay so no objections uh or reservations and and you have been stating stating that clearly if you send me a precious orders and that pressure or virtuous order has a terms and conditions and you are the the the seller or you are the buyer i am the seller and i did not object that of course the effective role of interpreting the agreement in a manner uh consistent with the true orientation of the party's intentions and bearing in mind that the exhibition of intention in the conclusion of the contract may be by conduct or opposition expressing the convergence of mutuality of the two intentions so let's take some questions from the floor i have uh uh one of the questions is very big so i will keep it to the end so nell is asking what distinguishes the arbitration friendly and non-friendly approaches so how is this to be identified well we have to see the precedent and the cases in the in the local courts of each jurisdiction we have seen the u.s courts are toward the implicit arbitration agreement that means we don't have to sign both the the the the both parties of the agreement should sign that agreement however we have seen in india in india there's two approaches approaches of the delhi court and the bombay court the dirty court they are with the the implicit arbitration agreement but the the bombay court they refused we have to see the the precedence of each jurisdiction okay so one uh one of the big questions that's from ansari uh he's asking so what would happen in the case there was a contract signed by both parties which include an arbitration clause and then after the execution the con the contracted order after the executing the contracted order there was a purchased order that was sent from one part to another that had a deviation from the original arbitration clause the receiver of the purchase order did not notice the changes and work it to the contracted order and the sent it then conflict arrives due to the performance and then the purchaser said they wanted an arbitration as bear the precision voice which she closed would be valid as the receiver did not notice the deviation of the original arbitration clause and therefore so this is the first question therefore is uh it uh therefore it did not agree on it simply performing ing to the invoice is not fair decision what's your opinion so it's a big question well um yes but but but thank thanks thanks khalid al-sari and thank you for this there is many forms for this kind of distributes whether the urbanization clause is in the main agreement maybe the basis order did not include the arbitration clause maybe the purchase agreement has a local court which is in vis-a-vis the the main agreement we have we have many scenarios um in a brief i would like to answer hard questions but i need him to send me an email about it to to to inherit and to understand it i think it needed an email because this is like you know uh big twitching but before you send it to me side and they will forward it forward the answer for you because i need to understand what's that matters so khalid and whoever would like actually to ask more questions you can contact dr nasser on the uh email uh written here so uh this this actually is recorded also a lecture or a webinar and it will be published on the cir website in addition anyone would like to have [Music] a copy of the presentation with dr master permission we can send him the this pdf presentation also he can send us email on our email account so i think doctor this is most these are the most of the questions if uh if there is no more questions uh there is also one more question what is the remedy if one of the parties to the contracts alleged at and later stage that it did not fully understand the implications of the agreement what's the question again what is the remedy if one of the parties to the contract uh allergized at a later stage that it did not fully understand implications of the agreement um he did not understand the implications of the agreement based on on the performing the the agreement itself or based on the on the arbitration clause in it uh it's not it's not clear what is the phone for at the later stages like i after week after the conclusion we have uh drawn from this webinar that he said okay i did not understand actually what i was signing uh or this implications of this agreement or the precious order so so this is what you are trying to say only arbitration agreement is it speaks only about the repetition agreement uh if he is if he is talking about the arbitration agreement the arbitration agreement should be in my opinion should be performed by the other party if it's performed by the other party then they have to go to arbitration yeah okay so another question from nel if the arbitration clause in the contract does not specify the seat of arbitration but the law of qatar is specified as the law of the contract will the cutter courts allow the arbitration and cutter so this is out of the subject but i'm sure that dr nasser can help well well the the seat is the is the is the legal seat means where is the annulment against that that arbitration flows abroad inside the local court which is local court here is the qatar so it will be a cutter of course okay so uh merza is asking uh kindly okay so this is uh not a question actually she's uh she or uh or he is asking about uh kindly guide us regarding recognition and the enforcement of foreign commercial action awards in qatar so we can make another session about this subject i think because this is a subject uh white subject so if a party submit a claim for arbitration through kika so this is i was a continuing uh for one of the questions so uh this would be the last question one of which and more my from michelle in a situation where an organization makes it purchases by bo's versus orders and the quality not well described what happened what happens when the organization rejects the items supplied and the supplier brings this to arbitration an example is the ite spectrum okay so in agreement to save the rights of both parties it should contain a specific information about the products and if the specific information about the product is not described well in the agreement then we will check within which called efficiency for example there is a standard of qatari products i think it's based on the engineer engineering engineering-wise there is there is a minimum standards for those for those things and if it's not upon the standard of those things yes they can't they can't take him to arbitration if it's the same standard or better than those standards i think there is many negotiations and discussions between the parties or between the parties lawyers and the court on what is the quality whether who is performing what and then the expert opinion you said and your people they are going to do their homework based on the expert opinion is this is this product is sufficiently to the uh or sufficient to meet the party's desires or not so thank you dr nasser so i don't think that we will have time to take more questions so um thank you everyone for attending today before we move uh we would like also to remind you that we our branch has a link in wave page and also we have many channels of communications so please communicate to us we will be having at least one monthly webinar in the upcoming period and also we are planning for one physical events uh uh it's coming very soon we will be announcing it uh later uh so thank you so much dr nasa for your time today for discussing this important matter uh thank you so much for uh uh the attendees today for taking your time during the busy days and attend uh so much uh uh actually important topic uh it was new actually for me myself thanks everyone and uh hopefully we'll be seeing you again in one of the uh our webinars and meetings thank you so much have a good day thank you thank you very much have a good day