Abstract
Due to its flexibility, speed and confidentiality, arbitration becomes the most attractive method for contracting parties to resolve their commercial disputes. This method of choice has developed gradually in the modern legal system of Islamic Countries (ICs) over the last three decades. Thus, many of individual countries have enacted their own arbitration regulations and ratified the relevant international arbitration conventions. They also established many qualified regional arbitration institutions. Subsequently, the referral to arbitration by professionals of these countries to settle their commercial disputes gains abundant popularity. This article provides a detailed view of Sharīʿah factor in international commercial arbitration.Enforcement is certainly the goal for the arbitration process. Nevertheless, enforcement of foreign arbitral awards in the ICs could be challenged if these awards are contrary to Sharīʿah public policy. Therefore, by using this exception, the ICs can reject the enforcement of any foreign award that violates Sharīʿah public order.
Highlights
The high volume of international trade and the assortment of transactions have led to a noticeable increase in the number and complexity of trade-related disputes
The fifth section explores the ways that can be followed in order to promote the application of Sharīah by the international commercial arbitration tribunals, including the role of Islamic arbitration institutions in incorporating Sharīah in international arbitration, the legal possibility for the parties to choose Sharīah as the governing law of a contract, and the role that the Islamic public policy exception may play in recognition or rejecting the enforcement of foreign arbitration awards in Islamic Countries (ICs)
There are many ways that can be followed in order to promote the application of Sharīah law by the international commercial arbitration tribunals, among of these ways could be the incorporation of Sharīah rules in the modern legal systems of ICs, promoting the role of Islamic arbitration institutions in the application of its rules and assuring the adapted solutions for the submitted disputes, respecting by the international arbitration tribunals for the party autonomy in the choice of Islamic law for settling their disputes, and retaining by the national courts of ICs the power of public policy to refuse the recognition and enforcement of the inconsistent international arbitral awards
Summary
The high volume of international trade and the assortment of transactions have led to a noticeable increase in the number and complexity of trade-related disputes. A number of western arbitral tribunals have endeavored to implement the rules of Sharīah in the international trade arbitration context, especially when the dispute is related to international Islamic finance. The fifth section explores the ways that can be followed in order to promote the application of Sharīah by the international commercial arbitration tribunals, including the role of Islamic arbitration institutions in incorporating Sharīah in international arbitration, the legal possibility for the parties to choose Sharīah as the governing law of a contract, and the role that the Islamic public policy exception may play in recognition or rejecting the enforcement of foreign arbitration awards in ICs
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