Harmonization of Custom, General Principles of Law, and Islamic Law in Oil Concessions

Abstract

What is proposed herein is that common legal principles found in civil, common and Islamic law, which form part or all of the legal systems in the Middle East and North Africa (MENA), can be distilled to create a new harmonized International Commercial Arbitration Law Code (HICALC) for adoption in the MENA. This Code also addresses many of the doctrinal issues that arise in international investment arbitrations. To this end, the author proposes that custom, as expressed in the lex mercatoria, as well as other general principles of law, can be harmonized with Islamic law principles .The majority of the MENA Law Codes are a well-crafted blend of civil and Islamic law in which civil law principles simply do not contradict any Islamic provisions. This was plainly Sanhuri's genius, as these Codes were originally based on Sanhuri's Codes to varying degrees. However, common law principles derived either from English common law or Islamic customary usages are largely unidentified and as a result are ignored. The research herein seeks to redress this lacuna and fill the gap, based upon a comparative law method of the analysis of primary data such as cases, statutes and arbitral award decisions. Adding the element of comparing and harmonizing custom and general principles of law with Islamic law is a new approach. This research is highly practical, representing a synthesis of theory and practice. The importance of this work in light of the revolutionary changes affecting the MENA make this research immensely topical.