The (Mis)framing of Arab International Commercial Adjudication: The Sharia, Political Contestation, and Due Process

Abstract

This article argues that the claims that international commercial adjudication is inconsistent with Islamic law, or, in the Arab context, is born out of the 20th century petroleum concession disputes, are unfounded. First, the early Arab Islamic trade interactions, in their multicultural and legal contexts, established Arab transnational commercial adjudication. These interactions were facilitated by flexible Islamic regulations regarding free trade and adjudication, especially the freedom to arbitrate. Second, there were profound international and inter-Arab political contestations from the 1960s onward that affected international arbitrations. These contestations could render the petroleum disputes irrelevant to the evolution of foreign investment arbitration. However, the beginning of international adjudication can be traced back to the principle of due process of law beyond the State; the perceived founding principle of Arabic transnational adjudicative procedures. Recognising this principle is important to assess its successes and flaws in the Arab context.