This is the first article in a series of articles on arbitration. We will attempt to address the different situations in which arbitration can be defined and positioned for debate.

Future articles will critically share comparative studies of arbitration and litigation and analyze legal landscapes to provide a checklist for public opinion’s consideration when reviewing the role of arbitration within the variably different legal systems.

Arbitration, habits die hard:

Although not intended, but parties to Arbitration are concerned about the possibility of awards that may be of questionable decisiveness or irregular (corrupt) environment and would like to be able to appeal such awards to trustworthy arbitrators of a superior standing tribunal. [1]

For cultural differences, unfamiliarity with foreign legislations and in most cases a mixture of both, international investors find statutory systems in the “Western” hemisphere more trustworthy and engaging than local legislations in countries such as in the Middle East although the concept of Arbitration is very similar in most cases.[2]

In the Middle East Arbitration developed through customs and tribal traditions when later it was refined into rules set through the teachings of Prophet Muhammad (PB) and the Quraan.[3]

Muslim religion influence developed into Islamic Law (Sharia’) and Islamic jurisprudence (Fiqh)[4], which introduced a comprehensive set of legislations that are presently applied either fully as in Saudi Arabia, or partially as in Egypt. However, we can say that Muslim Law (Sharia’) has an influential input in the majority, if not all of Middle East Judicial Systems.[5]

Extent of Muslim Countries Adopting Sharia’ as National Law:

Not all Muslim countries are the same towards adopting Islamic Law (Sharia’) as a source of their national laws and we also have to bear in mind that Muslim Countries are not only Middle Eastern countries, some are as Far East as Indonesia and Malaysia and others such as Lebanon and Israel, are in the Middle East but not recognised as a Muslim Countries. [6]

  1. Example of Countries that recognise Sharia’ as the main source of National Law: Iran, Bahrain and Saudi Arabia
  2. Countries that consider Sharia’ as the main source of National Law but they do not apply it to certain aspects of their legal system: Algeria, Egypt, Jordan, Malaysia, Tunisia and Yemen.
  3. Countries that are Muslim but not consider Muslim Law as a source for their National Legal System: Azerbaijan, Bosnia, Kazakhstan, Nigeria, Turkey.

Before Law there was Arbitration…

Man knew different methods of resolving disputes since the dawn of history and since before the structure of states or litigation systems.[7]

Ancient Sumerians (Babylon), Persians (presently known as Iran), Greeks and Egyptians all knew and practiced some form of arbitration agreements as a method of resolving disputes.

In the 1990’s a clay cylinder dating back to 2050BC (almost 5000 years old) was excavated in Babylon (Modern Iraq) with an inscription in Sumerian language of a treaty between the two cities of Lagash and Umma

where the conflict over water rights between the two cities was agreed to be arbitrated by the Chief God Enlil and the Kish King Mesalim.[8]

In Pharaonic Egypt around 2800BC, legal system, full state and governmental authority was fully functional.[9]

Arbitration was adopted as an ancillary to the State Judicial System and was mostly in matters related to rental agreements, land deeds, water rights and usage as well as trade agreements.[10]

What is interesting is that appeal against Arbitration Awards was very limited and could only be based upon the corruption of the Arbitrator himself.

If appeal was allowed, the highest authority of the land, namely Pharaoh “The God”, or whoever he decides to delegate from the High Priests or Government Ministers to represent him would sit on this appeal and usually the punishment would be death.

That is to say, the corrupt Arbitrator will be punished by death should he is proven to be guilty of corruption.

Posted by Mohamed Raffa, LLM, FCIArb, ICCM

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[1] Arthur J. Gemmell, Commercial Arbitration in the Islamic Middle East, 5 Santa Clara J. International (2006)

[2] Lovells, Client: Dispute Resolution in the Middle East: Arbitration and Enforcement, (Lovells 2006)

[3] Quraan is the Islamic holy book revealed to Prophet Muhammad (PB), Glossary of Islamic Legal Terms, 1 J. Islamic L. 89, 99(1996)

[4] Definitions of Arabic terms are based on Islamic Law works cited in this study and on my own readings of Arabic legal texts.

[5] N. Albejad, Arbitration in Saudi Arabia (Institute of Public Administration, 1999).

[6] Nesrine Abiad, Sharia, Muslim States and International Human Rights: A comparison Study 51 (2008)

[7] Henry P. Devries – International Commercial Arbitration : A Transitional View – Journal of International Arbitration V1.p7 April 1984

[8] G.A. Raymond, Conflict Resolution and the Structure of the State System (Allanheld, Osmun & Co. 1980)

[9] Georgios Zekos, International Commercial and Marine Arbitration, (Routledge-Cavendish 2008)

[10] Prof. Dr. Mohamed Badr, Prof. Dr. A. El-Badrawy, (Principles of Roman Law 1956) in Arabic.

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