Sharia Law and International Commercial Arbitration and Enforcing Dissertation - 1

Sharia Law and International Commercial Arbitration and Enforcing Foreign Judgments - Dissertation Example The purpose of the study was to explore the possibility of a conceptual harmonisation of conventional and Islamic arbitration between parties in different countries. The dissertation commences with a review of the historical development of arbitration in Islamic countries under Sharia law, in order to gain an understanding of the manner by which aspects of arbitration are perceived by the Muslim faithful. The discussion proceeds along this line to the philosophy behind salient concepts in the Islamic faith, particularly those elements that are seen to be of greatest disparity with conventional concepts. After examining these differences specifically as they pertain to Saudi Arabian law, the accession of the Kingdom to the various international conventions governing arbitral judgments and awards, their recognition and enforcement, as discussed. From this vantage point, the likelihood of integration of international legal development and legal development under Sharia law is assessed. The paper concludes that conceptual and philosophical consistencies exist between both systems that could viably form the basis for a harmonised law – an international arbitration law embodying provisions that blend with Sharia principles, and the evolution of Sharia law to be consistent with international law. Acknowledgements Table of Contents Abstract 1 Table of Contents 4 7 Chapter 1: Introduction and Research Question 8 1.1Chapter Overview 8 1.2Background to the study 9 1.3Alternative dispute resolution systems 10 1.4Background of international commercial arbitration and award enforcement 11 1.5 Research objective and research question 14 1.6 Research methodology 14 1.7 Scope and Limitations 15 15 16 CHAPTER 2 16 Chapter 2: Development of Arbitration Law in the Islamic countries( Middle East) 16 2.1 Chapter Overview 16 2.2 History and Development in Middle East regional arbitration law 17 2.3 Conflicts between International Commercial Arbitration and Sharia law 22 2.4 Re conciliation of ICA with Sharia principles 32 2.5 On the possibility of harmonising Sharia principles with international arbitration law 34 2.6 Chapter Summary 36 37 CHAPTER 3 37 Chapter 3: Islamic Principles In Commercial Law and Arbitration 38 3.1 Chapter Overview 38 3.2 Islamic teachings related to business and commerce 38 3.3 The practice of Sulh 40 3.4 The Islamic principle of Ijtihad 41 3.5 The teachings of Islam with regard to arbitration 43 3.6 Arbitration in terms of the perspective of Sharia Law 46 3.6.1 Legality of Arbitration from the Quran 46 3.6.2 Legality of Arbitration from the Sunnah 48 3.6.3 Legality of Arbitration from the Secondary Sharia Sources 49 3.7 Enforcing foreign judgments and awards 50 3.8 Chapter Summary 52 54 CHAPTER 4 54 55 Chapter 4: Implementation of International Commercial Arbitration in Saudi Arabia 55 4.1 Chapter Overview 55 4.2 The acceptance by Islamic countries of the global system of arbitration 55 4.3 Arbitration in terms of the perspective of Saudi Law 57 4.3.1 The concept of Arbitration in Saudi Law and its Characteristics 57 4.3.2 International Commercial Arbitration in Saudi Arabia 57 4.4 Chapter Summary 59 Chapter 5: Synthesis of Saudi Arbitration Law and International Commercial Arbitration 61 5.1 Chapter Overview