The check is a tool of fulfillment in the commercial law. The legislator has been subject to strict penalties. The check includes two parts, civil part and criminal part. In this research, we discussed the possibility of resorting to arbitration in settling down check disputes. As a result, the criminal case falls or ends between the parties to the dispute after they agree to resolve the dispute between them except for a public right that cannot be waived. But in the same time no public rights exists it civil disputes, in the time that criminal protection for check in Jordan is coming as extra protection to the check because many reasons which the spread use of check as a credit tool is the most important. The purpose of this research is to demonstrate the extent to which arbitration can be applied as a mean of settling down disputes in checks disputes, which are considered as commercial papers and to determine the extent to which this affects the criminal case. This section has been dealt with in two parts: Section One, the possibility of arbitration in check disputes. In the second section, the effects of resorting to commercial arbitration, and we concluded that there is a possibility to resort to arbitration in checks disputes regarding the two forms of disputes that may be initiates, especially when we know that the Jordanian legislator was silent regarding this issue. Accordingly, it is recommended that specific legal provisions relates to arbitration be issued clarifying the possibility of using arbitration in check disputes because of its positive aspects in commercial disputes.
Check is considered one of the most prominent commercial papers in modern times, because of the role it plays in the embodiment of commercial speed, which has made it widely spread in the commercial circles, because it is considered a tool of fulfillment, and can not in any way be a tool of guarantee under penalty of punishment, Check with great emphasis in different laws.
Check is defined as: "A written editor in accordance with conditions mentioned in the law and includes an order issued by a person who is the drawer to another person who is a bank and the drawee is obliged to pay a third person or to his order or to the check holder - the beneficiary - a certain amount upon access.[
The issue of the check under the study of commercial law raises specific problems because it includes two parts, a penal part and a rights part. Jordanian law and comparative laws penalized the penal part, especially the offense of issuing a check that does not have an existing and defunct payment [
Thus, the criminal action ends or falls between the two opposing parties or their agreement to waive and resolve the dispute between them. This is an exception to the general rule in the case of the public right, which is the property of all and may not be waived or reconciled [
But the most important problem in our research is the trade disputes and ways of solving them through resorting to alternative means to settle disputes around them. The most important alternative means is arbitration. Therefore, the purpose of this research is to demonstrate the extent and feasibility of the application of arbitration - as one of the means of settling commercial disputes - in the settlement of check disputes which are considered commercial papers and to which the provisions of the Commercial Law apply, also to determine its impact in the criminal case.
Arbitration disputes have a commercial nature, and arbitration as a means of resolving disputes is referred to commercial disputes. However, law, whether arbitration law or commercial law, did not provide the possibility of resorting to arbitration as a means of settling these disputes.
The importance of arbitration as a means of resolving the dispute is evident, because it is characterized by the achievement of speed. The arbitration process developed until the legislator joined the law by a special law. In Jordan, the Jordanian legislator also enacted a special law for arbitration, pointed in general to use arbitration in disputes with commercial nature leaving a general rule, but he did not specify the types and types of disputes that could be resorted to arbitration for settlement.
This is even more important when looking at the check as a commercial dispute, which is linked to a criminal offense or a criminal claim, so it is important to recognize the possibility of resorting to arbitration in resolving the dispute of checks and to indicate the impact on the criminal part of the case. It is also important that the parties to the dispute in the check dispute may not stop there. Some people may be affected by the trade paper or the effects of the trade paper may evade them, but they will not be involved in the trade dispute until a certain point. In terms of the extent to which these persons are affected by the use of arbitration to settle the dispute of checks to which they may be associated with the relationship of endorsement or collateral.
Section I: The Possibility of Arbitration Dispute Checks.
To investigate the possibility of arbitration in disputes related to the check, we must investigate the possibility of arbitration in the check as a civil dispute in the first demand, and then show the pictures of the agreement to arbitrate the check in the second demand.
The first requirement: the possibility of arbitration in the check as a civil conflict.
In the beginning, arbitration is defined as an agreement to bring the dispute to a particular person or persons to separate it from the competent court.[
From this we conclude that arbitration may be agreed upon in the dispute concerning the check. This is confirmed by the fact that the check applies to commercial provisions in the Commercial Law. The Jordanian Trade Law states that if the provision of this law is not applied, the provisions of the Civil Code shall apply to commercial articles. The application of these provisions shall only be in accordance with the principles of the Commercial Law[
In the Jordanian Trade Law, if a criminal action is instituted against the drawer, the personal prosecutor may request the competent criminal court to adjudicate to him the amount of the value of the doubt without prejudice to his right if necessary in all the implications. The right holder may claim his rights before the ordinary courts if he so chooses [
In response to this, we find that the Egyptian Constitutional Court has taken the arbitration award in the check and violated the ruling issued by the General Federation of Chambers of Commerce and the Cairo and Alexandria Chambers. It dealt with the issue of arbitration in the check while resolving the dispute between two judgments, one of which was issued by an arbitral tribunal, The first was to obligate the beneficiary of the check to return to the drawer and the second to punish the drawer for a misdemeanor check without a balance, Where he confirmed the ruling on the permissibility of arbitration and that he drops the public right [
As to the extent to which arbitration may be agreed upon in the check, that is, the arbitration of the check as a civil dispute, the recourse of the beneficiary to the civil court in the case of an agreement between him and the drawer to arbitrate the disputes arising therefore poses no problem, And it is established that arbitration in disputes of a financial nature is not a problem. Therefore, the agreement of the drawer or the beneficiary to resort to arbitration in respect of civil disputes arising from the check leads to the closure of the civil road to the beneficiary whether the beneficiary resorts to this route in the form of a performance order or in the form of Obligation to bind [
However, there is a situation which may lead to some difficulties, namely, the case of the claim of civil rights by the beneficiary before the court, which examines the misdemeanor of the check without a balance. This claim is mainly for compensating the beneficiary for damages caused by the perpetrator of the crime of doubt without balance. If the arbitration agreement on disputes arising from the check terminates the right of the beneficiary to the civil prosecution before the criminal court, or is this claim one of the main requirements of the criminal case and the impact of the agreement on arbitration is applied to the criminal jurisdiction.
The answer to this by reference to the Code of Criminal [
The Second Requirement: The Agreement on Arbitration In The Check
The agreement on arbitration generally takes two forms [
Therefore, the images are the agreement independent of the contract on which the checks were issued or on the basis of a clause of the base contract provided that the checks are stated in their numbers and values under the terms of this contract and that it can be done before or after the dispute arises, The same check, and here the effect of this condition applies to all parties and all signatories of the appearance and guarantors.
Section II: Effects of Arbitration on Checks
There are traces of resorting to arbitration in checks, we deal in two demands: the effect of the arbitration clause in the check on the criminal case in the first demand, and then the effect of arbitration agreement in terms of people in the second demand.
First Requirement: Effect of the Arbitration Clause in the Check on the Criminal Case
In the beginning, reference must be made to the definition of arbitration, which is the final decision made by the arbitral tribunal on the subject matter of the dispute, whether this decision is comprehensive for all or part of the dispute. Whether the arbitral tribunal accepts or rejects all of the requests, the other part. In the dispute before the arbitral tribunal, one party may request certain requests that are rejected by the other in full and are filed on a counterclaim. After the exchange of regulations and memorandums and the submission of evidence, the Commission shall reserve the case for judgment and shall issue its final judgment in all the applications of the parties once. This is the final judgment [
a.
B. Compulsory principle: Any decision issued in the dispute submitted to the arbitration shall take the form of the judicial judgment, and it is binding on the parties to the dispute without their acceptance if it is issued within the assets and within what is agreed upon. It is also a final judgment that can not be challenged, except in very rare cases that will be discussed, often related to the request for review in the case of new facts or the state of interpretation.
As for the effect of the arbitration clause in the check on the criminal case, for civil law we apply the provisions of the arbitration law or arbitration agreement. In the case of conciliation, the criminal case is suspended and the execution of the penalty is suspended in the case of conciliation. There is nothing in the Jordanian arbitration law such as the Egyptian version No. 27 of
This may be related to public order and the idea of rules of the penal system. However, in the penalty there is room for reconciliation, as the researcher pointed out, and there is nothing in the arbitration law that prevents arbitration because it is permissible to conciliate. This can be applied to the crime of the check without a balance. In which case it was decided that the conciliation leads to the expiry of the criminal case, it has made this case a sole right of the victim and the beneficiary, which we see with it that the agreement to arbitrate disputes arising from the check also closes the path of criminal justice, And the victim may not the beneficiary of the check to evaluate a misdemeanor check without balance, whether direct claim or by the public prosecutor. The agreement to submit all disputes of the check to the arbitration body means waiver of consent to resort to the judiciary, whether civil or criminal.
The Second Requirement: The Effect of Arbitration Agreement in Terms of Persons
The impact of an arbitration agreement will be examined in terms of persons, the researcher points out that the arbitration agreement requires writing, or it will be avoid. The arbitration agreement does not apply except to those who signed it and accepted it explicitly. In the field of check, the arbitration agreement does not take effect in the face of the drawer and the beneficiary, any problems, but the problem arises for the appearance of them and for the reserve guarantors.
First: The Effect of Arbitration Agreement on Appearance:
This varies depending on the type of endorsement and the types of endorsement intended here: the transfer of ownership, and Authorization [
a.
The researcher has shown previously that the arbitration requires writing for the agreement, and because the appearance of it (the site to him) in the endorsement of the transfer of ownership is considered by third parties in respect of the contract basis on which the arbitration was agreed and signed by the drawer and the beneficiary, the arbitration agreement does not apply to face it, As well as some other defenses, such as the principle of relative effect of the contract, and the rule of disqualification of defenses for the bearer of goodwill in the check as a commercial paper [
B.
As for the arbitration contract or the base contract, the appearance in the proxy endorsement (
The insurance endorsement is not envisaged in the check because the check is due to performance as soon as it becomes available, and for the short period of time that the law requires it to be submitted [
Second: Effect of the Arbitration Agreement for the Reserve Guarantors.
It is natural to say that whoever signed the check as a reserve guarantor to fulfill its value. The arbitration clause was not included in the check itself, but in the basic contract [
The research found that there is a possibility of resorting to arbitration in check disputes, in respect of the two forms of disputes that may be received on the check, as a commercial paper subject to the provisions of the Commercial Law, and that the disputes that arise are commercial in nature, for the check specifically.
This possibility was found when it was found that there is no provision for recourse to arbitration in Jordanian arbitration law or Jordanian commercial law, and in return there is nothing to prevent it, and the provisions of conciliation and agreement to resort to arbitration are public matters, The Arbitration Law stipulates that in the matters where it is permissible, the Jordanian Arbitration Law provides a general rule on its validity. The provisions of this law apply to any arbitration in the Kingdom. It concerns a civil or commercial dispute between parties of public law or private law, the legal relationship that spins ho here the conflict, dogmatic or non-dogmatic.
It was found that the Jordanian judiciary did not address this issue, but the Egyptian judiciary in rare and famous rule has had the opportunity to discuss this issue, where he settled on the possibility of resorting to arbitration to settle down checks disputes, a ruling issued by the Egyptian Constitutional Court.
It has also been shown that arbitration in its form may respond to the settlement of check disputes as a general rule, where there is nothing to prevent or determine, arbitration may therefore be sought through the arbitration clause in the contractual relationship between the parties or through an arbitration agreement or so-called arbitration partner
In this case, the penalty clause in case of conciliation is suspended and the execution of the penalty is suspended in the case of conciliation. There is nothing in the Jordanian arbitration law to confirm this. , Such as the Egyptian Arbitration Act No. 27 of 1994, which stated that all that may be settled leads to the expiry of the criminal proceedings and the suspension of the execution of the sentence, but this is considered to be one of the general rules of Jordanian law.
The effect of the arbitration agreement in terms of persons, both in terms of appearances, was found to be different, depending on the type of endorsement. As for the transfer of ownership, the appearance in this endorsement is considered by others to be the basis for the arbitration. The arbitration agreement is not applicable to countering it, along with some other defenses as a relative principle of the effect of the contract and the rule of clearing defenses for the goodwill holder in the check as a commercial paper. As for the proxy endorsement, which has the same effects as the agency, it is not the owner of the right check content, which affects the arbitration agreement. As for the arbitration contract or the base contract, the appearance in the proxy endorsement is considered to be from third parties. If the proxy endorsement has been made to the appearance from another appearance, the arbitration clause does not apply to it because it does not apply mainly in the face of this other aspect. To whom the first beneficiary has been granted, the arbitration clause to which he is bound shall apply in the face of the appearance to which he is the agent.
As for the third type of representation, which is the insurance endorsement in the check, it is inconceivable, because the check is due to performance as soon as it becomes available, and for the short period of time that the law requires it to be submitted, so this is out of the scope of our study.
Finally, with respect to the effect of the arbitration agreement for the reserve guarantors, it was found that whoever signed the check as a reserve guarantor to fulfill its value. The arbitration clause was not the same as the check itself, but in the basic contract that included the mention of the check, because he did not explicitly accept him, since he did not sign it and was not party to the foundation contract.
Accordingly, it was recommended that specific and clear legal provisions should be issued indicating the possibility of arbitration in check disputes because of its advantages in commercial disputes. It also will
mitigate the number of cases before the courts, in addition to the main advantage of resorting to arbitration to settle down disputes