LEBANON Law and Practice Contributed by: Mohamed Alem, Mazen Ghosn and Rana Kahwagi, Alem & Associates
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
As a result, Lebanese courts have tended to apply Arti - cle II(3) of the New York Convention in order to extend the application of Article 764 of the NCPC to inter - national arbitration, thereby limiting the state courts’ review to the mere verification of the manifest invalid - ity of arbitration agreements (Court of First Instance of Beirut, 26 February 2014, Decision 194/2014). As for negative decisions on jurisdiction, there are no provisions in the NCPC or precedents in Lebanese case law that prohibit state courts from reviewing such decisions, but as far as is known, no such review has taken place. 5.3 Timing of Challenge The Lebanese Court of Cassation, in reviewing the admissibility of a challenge to arbitrators’ decision on jurisdiction, held that the provisions of Article 615 of the NCPC – which sets out the decisions that may be challenged during the course of proceedings – must be transposed to arbitration. This is due to the fact that Article 804 of the NCPC subjects appeal and applications to set aside arbitral awards to the proce - dural rules governing recourse to the court of appeal. Moreover, since Article 615 of the NCPC does not list the challenge to arbitrators’ decision on jurisdiction among the decisions that can be appealed during the proceedings, the Lebanese Court of Cassation con - siders that such recourse is inadmissible before the arbitral award is issued (Lebanese Court of Cassation, Decision 13/2007). This approach is followed by the lower courts (Court of Appeal of Mount Lebanon, 4 March 2010, Decision 28/2010). Considering that Article 804 of the NCPC is also appli - cable to international arbitration by reference to Article 821 of the NCPC, challenges to arbitrators’ decisions on jurisdiction in international arbitration is also not admissible prior to the issuance of the arbitral award. It follows from the above that parties have the right to challenge the jurisdiction of an arbitral tribunal before state courts only after an award has been rendered, at the enforcement or annulment stage (Articles 817 and 819 of the NCPC). It should be noted that the Lebanese case law is silent on the issue of recourse against partial arbitral awards.
Jurisdictional issues at the annulment or enforcement stage are reviewed de novo by the court of appeal. However, parties that fail to raise jurisdictional objec - tions during the course of arbitral proceedings on grounds of which they were aware at the time are deemed to have waived their right to challenge the award on those grounds (Lebanese Court of Cassa - tion, Decision 142/2001). As to questions of admissibility, as indicated in 5.2 Circumstances for Court Intervention , Lebanese courts almost always rule on the validity of arbitration agreements, notwithstanding any prior jurisdiction conferred on arbitrators or limitations on the scope of review by state courts. Lebanese courts have only recently begun to move towards a mere prima facie review of the validity of arbitration agreements. 5.5 Breach of Arbitration Agreement As noted under 3.3 National Courts’ Approach , while the Lebanese Arbitration Law is silent on the princi - ple that state courts must decline jurisdiction when a party invokes an arbitration agreement, this principle is well established in Lebanese case law. Neither the NCPC nor the case law allows state courts to raise their lack of jurisdiction ex officio, as the right of a party to object to jurisdiction of the court is not a matter of public policy (Lebanese Court of Cassation, 22 March 2006, Decision 61/2006). Instead, Lebanese courts require that the arbitration agreement to be invoked in limine litis (Court of First Instance of Beirut, 18 February 2004), failing which the parties are deemed to have waived their right to bring the dispute before an arbitral tribunal (Court of Appeal of North Lebanon, 19 January 2006, Decision 24/2006). 5.6 Jurisdiction Over Third Parties The Lebanese Arbitration Law does not preclude the application of the principle of extension ratione perso - nae of the scope of an arbitration agreement to per - sons (natural or legal) who have not signed it.
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