The authority of the trial court to derive an implied waiver of plea of the existence of an arbitration agreement

This research (commentary) focuses on the approach taken by the judges of the court that issued the ruling subject of this commentary in addressing disputes between partners of a simple partnership company on the one hand and its director on the other, and where the company's contract included an arbitration clause in its disputes. Despite the existence of an arbitration agreement, both parties filed a lawsuit before the first instance court with their requests against the other party. The court ruled that the two lawsuits were not admissible for the existence of an arbitration agreement.

Each of the parties to the dispute filed an appeal against the primary judgment. The appellant (the plaintiff in the original lawsuit) challenged the judgment for its mistake in applying the law, based on the fact that the defendant's requests and his actions indicate his waiver of the arbitration agreement (especially his discussion of expert reports and the documents he submitted).

The Appeal judgment found support for what it concluded in the text of Article (13) of the Arbitration Law No. 27 of 1994, which indicates the conditions, for the court, to decide inadmissible the lawsuit initiated before it . In this context the court listed applications for the actions of the defendant which did not intervene (touch) with the subject matter of the lawsuit.

When the court of Appeal dealt with the disputes, the court tried dismantling the links between lawsuits for which the appeal judgment was issued; in addition the court exercised its authority in assessing the extent to which the defendant's requests and his defense affected the subject matter of the case and concluded the defendant's actions did not affect the subject of the initiated lawsuit.