FEMIDA, Roman Goddess of Justice



As an arbitrator is deemed under the four Sharia Schools to exercise a judicial function, he must have the same qualifications as a judge. This qualification can be summarized as follows.

The arbitrator must possess the foregoing qualifications continuously from the date of commencement of the arbitration until rendering an award.

As to the revocability of arbitrators by one of the parties, the Maliki School prohibits revocation after the procedure has started. The Shafei and Hanafi schools permit the revocation of arbitrators at any time before rendering the award. However, the view that receives mostly full approval and appreciation in the legal profession is the view of the Maleki School, which provides that the appointment of an arbitrator is irrevocable after the commencement of the procedure except by mutual agreement of the disputing parties. This view seems to be the most appropriate because it meets the requirements of international business community.

So, can the Arbitrator be a woman?

Omar, the third Khalipha in Islam after Prophet Muhammad , actually appointed a female judge. Today, across the various Muslim countries, there are female judges in almost every Muslim country except in Saudi Arabia. There are about 70 female Iraqi judges, 10 female judges in the UAE, 20 in Egypt female judges and Arbitrators, Nigeria recently appointed the first female Chief Justice in Africa as well as it has one of the largest National Associations of Women Judges; with more in other Muslim Countries including Indonesia and Malaysia.

Given that there is no specific prohibition against a female judge and that most Muslim countries now have female judges, the position that a woman is not allowed to sit as an arbitrator because there were no female judges at the time of the Prophet is somehow illogical.

We also forget that the eternal personification of the moral force in judicial systems around the world is that of a woman: the Devine image of the Roman Goddess Femida holding the sword in the left hand and the ‘Balance of Justice’ held by her right arm. A woman Goddess for Justice. An image installed in man’s mind centuries before Christianity or Islam, when societies struggled for Justice.

How enforceable can an award be in a Muslim country?

The key difference between “arbitration” and ”litigation” is the binding aspect of internationally enforceable arbitration awards. The guarantee of the enforceability of an arbitral award is the ‘raison d’être’ for parties to enter into an arbitration agreement. Obstacles lead to risks for parties to a contract who believe that in the event of an unfulfilled contract a just financial remedy compensating them for their losses is enforceable.

To attempt to dispel these notions, many Muslim countries have begun to reform and modernize their arbitration laws and practice. These initiatives have ranged from the adoption of the familiar United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration in the countries of Bahrain, Iran, Jordan, Oman, Egypt and Tunisia to the adoption of Western arbitration models in Qatar and Lebanon.

In addition, the number of arbitral institutions in the region is growing, allowing for the more effective administration of local arbitration by experienced personnel backed by recognized rules and modern resources.[1] Well-established organizations such as CIRCICA and DIAC (Dubai International Arbitration Centre) have been supplemented with the recent openings of the International Arbitration and Conciliation Centre in Qatar and the DIFC-LCIA Arbitration Centre in Dubai[2], Cairo Regional Centre for International Commercial Arbitration (CRCICA) in Egypt, RCICAL in Nigeria[3], etc.,.

Increased interest in the arbitration conferences and training programs held by these organizations demonstrate the region’s efforts to meet the needs of foreign investors and to conform to the standards of the international arbitration community. For example Bahrain Chamber of Dispute Resolution partnered with the American Arbitration Association to launch the (BCDR-AAA) under the new legislation which guarantees that disputes heard at the BCDR-AAA will not be subject to challenge in Bahrain, provided the parties agree to be bound by the outcome.

These are some of the attempts by Muslim countries to address potential risk and remove current barriers to enforceability of international awards.

Let’s face it, whether a party has obtained an arbitration award in a foreign or domestic jurisdiction, in practice enforcement under most of the Muslim countries procedural laws are often unpredictable and time-consuming.

One major difficulty is the interpretation of public policy by Muslim jurists. Harmonisation is the principal way to reduce such risks of unenforceable awards. Conflicts between customary and civil law principles with Sharia need to be addressed and resolved.

The 2004 case of International Bechtel Co. Ltd. v. Department of Civil Aviation of the Government of Dubai[4] serves as a prime example. In Bechtel, an arbitration award rendered in favor of the claimant in Dubai was set aside by the Dubai Court of Cessation, on the ground that the arbitrator had failed to swear witnesses in the manner prescribed by UAE law for court hearings. In the wake of similar decisions, one UAE practitioner explains, “the fear is that when an arbitration award is issued, it will be struck down by the courts – for one reason or the other.”[5]

How applicable is Sharia?

The question then arises – does the law in an Islamic country ever deviate from the Sharia? The answer is “Yes”, and all the time.

Interest rates for example;  in Islam fixed interest rates on deposits or loans are prohibited. However, in almost every single Arab country there is a clause in the commercial code that says interest rates are to be calculated and calculations of indeminities as well as delay penalties has been awarded in commercial transactions as well as other forms.

There are judgments from Abu Dhabi’s Court of Cassation, Egyptian Commercial Court and many more, where the law that provides for interest has been challenged on the basis that it is not constitutional and the court refutes it, refusing to apply Sharia as dry Sharia, on the basis that as a judge one is confined to applying the law and therefore interest can be awarded.

Thus although Sharia finds its way into the law, the judge and arbitrators are applying codified law, including issues to which some people object.

For example, if one looks at the law in Egypt or Jordan under the law of arbitration, arbitrators will be appointed without reference to religion or gender. It is a dead issue, already determined and today there are no more instances of somebody standing up and disputing whether a female arbitrator can be appointed or not.

There is no prohibition in the jurisprudence; except that the arbitrator should have the qualification of a judge (we already discussed the story of Omar appointing a female judge).

The law of the land today determines these issues. Some of the national law is sourced from the original Islamic principles of Sharia and so these principles have become embodied in the law of the country. This means that if you file an application before the courts or arbitral Tribunal in a contemporary Islamic state, where factually, countries like Saudi Arabia, where anything that falls outside Sharia is considered as outside public policy and shall be treated as against religion and tradition upon which public policy and social morals and interests are built, today in modern Arabia, arguments based on some Sharia jurisprudence that existed before may be irrelevant unless the judge is directed to a particular article within the national law. [6]

The use of custom in Islam is time honored and as legally binding as it is in customary English common law.”[7]

In fact, not only is custom honored in English law but it is has historically been the essential ingredient to harmonization of Great Britain Laws with its international trading partners.

This task was taken over by English Courts and English Judges, creating precedents for harmonisation.

For example, one of the aims of English judges who developed contract law was to make principles of trading law similar to, or at least compatible with laws of other nations with whom England traded with.”[8]

Harmonisation requires integrating tools which are naturally and structurally found in Sharia interpretations.

Ijtihad (researchable interpretation) as well as public policy customs (Orf)[9] are deeply rooted in the Islamic Jurisprudence code. [10]

Analysis of these three tools demonstrates they are common to traditional arbitration practices and are capable of being employed to justify the expansion of arbitral competence and increasing arbitral award enforcement in Sharia applied contracts.

Globalisation cannot be ignored and it existed at the time of the founding of Islam through the spread of Muslim armies halfway into Europe and as far East as China as much as it exists at our present time.

Sharia law, if interpreted properly, can provide tools applicable to our modern age and will allow appropriate jurisprudence addressing modern globalisation problems.

Sharia law, to its followers is divinely inspired, and as such, its interpretation is not left to the personal opinion of the jurist or the arbitral tribunal, but rather to interpretation of the reasons behind the rule and how to appropriately apply it. In this context, Sharia is not created but pre-existing and adjudication requires simply using known facts as the starting point from which to draw inferences or conclusions about a Sharia ruling.

..and to be contd;

Posted by Mohamed Raffa, LLM, FCIArb

[1] See Jagusch & Kwan, supra note 6.

[2] In 2008 the Dubai International Financial Centre (DIFC) enacted a comprehensive and jurisdictionally inclusive new arbitration law; additionally, the partnership between DIFC and the London Court of International Arbitration creating the DIFC – LCIA Arbitration Centre.

[3] The Regional Centre for International Commercial Arbitration – Lagos (http://www.rcicalagos.org/about.html)

[4] International Bechtel Co. Ltd. v. Department of Civil Aviation of the Government of Dubai 300 F. Supp. 2d 112[1] (DDC. 2004).

[5] Sona Nambiar, Common law needed as UAE sees spurt in arbitration, Emirates Business 24/7, September 9, 2009;


[6] J. Makdisi, Legal Logic and Equity in Islamic Law, American Journal of Comparative Law, 33

[7] Fortier, C.Y., Forward, in Hunter M., Marriot, A., Veeder, V.V., (Eds), The Internationalisation of International Arbitration LCIA Centenary Conference, Graham & Trotman Limited, at p. vi., “In business, especially, people crave certainty. Certainty demands rules. Rules derive from principles. Practice, as well as reason, has a hand in shaping principles. And commercial practice in a global economy will increasingly tend to reflect conditions concerns and expectations that are common, that is, transnational rather than purely local. This is not to say that particular contexts do not require particular rules.”

[8] De Zylva, Martin Odams and Harrison, Reziya. In the introduction (the Editors), International Commercial Arbitration.

[9] Prominent scholars64 refer to verse 7:199 in the Quran as the basis for sanctioning ‘Orf.

[10] August, R. (2004) International Business Law. Texts, Cases, and Readings, (Fourth Edition) Pearson Education Ltd., Australia, at p.55