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Journal of Islamic Banking and Finance
December 2014, Vol. 2, No. 2, pp. 15-26
ISSN 2374-2666 (Print) 2374-2658 (Online)
Copyright © The Author(s). 2014. All Rights Reserved.
Published by American Research Institute for Policy Development
DOI: 10.15640/jibf.v2n2a2
URL: http://dx.doi.org/10.15640/jibf.v2n2a2
Proposal for the Dubai World Islamic Finance Arbitration Tribunal (DWIFAC)
and Jurisprudence Office (DWIFACJO) as the Dispute Resolution Mechanism
and Center for the Islamic Finance Industry
Camille Paldi1
Abstract
__________________________________________________________________
The proposal for the Dubai World Islamic Finance Arbitration Center (DWIFAC) and
Jurisprudence Office (DWIFACJO) entails a complete system of unique dispute resolution
tailored specifically for the Islamic finance industry modeled on the built-in contractual
dispute mechanism found in the FIDIC contract, which is widely used in the international
construction industry. This system encourages completion of contract and preserves the
relationships of the parties. Only in the event that this built-in mechanism fails can the
parties send the dispute to the Dubai World Islamic Finance Arbitration Center, which will be
staffed with arbitrators and Islamic finance and Shariah experts who may apply commercial
business practice as well as Shariáh to the arbitration process. DWIFAC will have a working
relationship with all of the other dispute resolution bodies in Dubai and the UAE. The
Center will host a centralized Shariáh Board for the UAE and DIFC as well issue an Islamic
Banking law for the UAE and DIFC, which can be replicated by countries all over the world
to facilitate Islamic finance transactions in their states.
____________________________________________
Introduction
As the Islamic finance industry is growing annually at a rate of 10% to 15%
per year, it is imperative that a unique, independent legal framework is established in
order to effectively adjudicate Islamic finance disputes. Currently, Islamic finance
disputes are being adjudicated in inadequate civil and common law courts and
arbitration centers where the contracts in dispute are being transformed from Islamic
to conventional transactions.
1 CEO of the Franco-American Alliance for Islamic Finance.
16 Journal of Islamic Banking and Finance, Vol. 2(2), December 2014
The aim of this paper is to explore the role of the Dubai World Islamic
Finance Arbitration Center (“DWIFAC”) and its’ jurisprudence office (DWIFACJO)
as the dispute resolution center of the Islamic finance industry, fitting in with the
recent 2013 Sheikh Mohammad ‘Dubai as the Capital of the Islamic Economy’
initiative.
Islamic finance contracts should include an additional standardized dispute
resolution contract issued by Dubai World Islamic Finance Arbitration Center
Jurisprudence Office (‘DWIFACJO’)with a built-in dispute resolution procedure
similar to theInternational Federation of Consulting Engineers (‘FIDIC’) designating
theDubai World Islamic Finance Arbitration Center (‘DWIFAC’) as the arbitration
center. If the contractual dispute resolution procedure is exhausted, then the dispute
may be referred to DWIFAC, which may utilize the Model Islamic Banking Law
created by DWIFACJO as the substantive law of the arbitration, the procedural law
of the seat of the arbitration, and the DWIFAC arbitration rules, which includes
Shari’ahand lexmercatoria.
The arbitration center may be staffed with the world’s top Shari’ah scholars
and Islamic finance lawyers, judges, and experts who can provide input about the
Shari’ah aspects of the dispute through the use of an Islamic form of exaqueo et bono,
which allows disputes to be settled using commercial practice rather than purely legal
devices.
DWIFAC and DWIFACJO
DWIFAC along with the DWIFAC Jurisprudence Office shall be the central
command station for Islamic finance dispute resolution in the UAE, GCC, and the
world, providing a standardized contract with built- in dispute resolution, a uniform
Islamic banking law, an arbitration center, and a centralized Shari’ah authority in the
form of the Supreme Shari’ah Council.
It is clear that state courts in common and civil law jurisdictions are
inadequate to adjudicate Islamic finance disputes due to the lack of recognition of
Shari’ah law, lack of independent Shari’ah advisory committees, and/or the inability of
court staff to apply effectively Islamic finance and Shari’ah concepts in dispute
resolution.
Camille Paldi 17
In addition, the currently existing arbitration centers are insufficient to handle
Islamic finance matters due to lack of properly trained staff, inadequate procedure and
rules, misapplication and non-application of Shari’ah and preference for national law,
legal uncertainty, and lack of popularity as a mode of dispute resolution. DWIFAC
may offer the Islamic finance industry a globally recognized arbitration center
complete with the DWIFAC jurisprudence office, which may issue a uniform Islamic
banking law and a standardized DWIFAC dispute resolution contract, creating
harmony, legal certainty, and investor confidence in and across the Islamic finance
industry. The DWIFAC standardized dispute resolution contract contains a built-in
dispute resolution mechanism, facilitating early dispute settlement and completion of
contracts. This contract may be attached to all Islamic finance contracts industry-
wide, making DWIFAC the central dispute resolution authority for the industry.
DWIFACJO Uniform Banking Law
As it stands now, the UAE does not have an Islamic Banking law, however, it
has a law allowing Islamic Banks to exist, UAE Federal Law No. 6 of 1985 Regarding
Islamic Banks, Financial Institutions, and Investment Companies.
There had previously been a proposed law for governing Islamic banks in
1985, but it had not been backed up by a decree and therefore, that is why the law is
not in existence now. However, Federal Law No. 6 of 1985 was promulgated to legalize
Islamic banking in the UAE. Article 5 provides that a Supreme Shari’ah Council
should be established and approved through a cabinet decision, but it never
materialized. The Supreme Shari’ah Council would oversee Islamic banks, financial
institutions, and investment companies and its opinion would be binding. However,
Article 6 was implemented, which requires that each Islamic firm establish its own
Shari’ah Supervisory Authority (‘SSA’) consisting of three members, to be approved by
the Shari’ah Supervisory Council (ISRA 2013:656) and inserted into the articles of
association (ISRA 2013: 656). The SSA is obligated to apply Shari’ah to the company
operations and contracts (Thani, Abdullah, Hasan 2004: 256).
18 Journal of Islamic Banking and Finance, Vol. 2(2), December 2014
DWIFACJO may take the opportunity to formulate and issue a Uniform
Islamic Banking Law based upon the draft of the UAE 1985 Islamic Banking Law,
UAE Federal Law No. 6 of 1985 Regarding Islamic Banks, Financial Institutions and
Investment Companies, the Law Regulating Islamic Financial Business DIFC Law No. 13 of
2004, and AAOIFI standards. The new law may then be utilized as the substantive law
in DWIFAC arbitrations and submitted to the UAE government for approval and
gazetting as this law would be necessary for the UAE in order to fulfil its mandate of
becoming the capital of the Islamic economy. In addition, DWIFAC may establish a
central Shari’ah Supervisory Authority or Supreme Shari’ah Council for the UAE,
which may be utilized by all existing UAE dispute resolution bodies, including the
Central Bank of the UAE, the Dubai Courts, and the DIFC/DFSA, which lacks such
a board. The Supreme Shari’ah Council may fulfil its original purpose of approving
the Shari’ah boards of all Islamic financial institutions in the UAE, including in the
DIFC.
The DWIFAC Standardized Dispute Resolution Contract
I propose that DWIFACJO issue a standardized dispute resolution contract,
which may be attached to the main contract. The DWIFACJO standardized dispute
resolution contract may contain a similar built-in dispute resolution mechanism as the
FIDIC contract containing three stages including (1) the Dispute Resolution Board
(‘DAB’), (2) amicable settlement, and (3) final referral to DWIFAC arbitration.
Within thirty days of the occurrence of the subject-matter of a dispute, any
party to the contract may submit a claim to the DAB, addressed to the chairman of
the DAB and with a copy to all parties of the contract. However, if any of the parties
to the contract considers that there are circumstances, which justify the late
submission, she may submit the details to the DAB for a ruling. If the DAB considers
that it, in all the circumstances, is fair and reasonable that the late submission be
accepted, the DAB shall have the authority to override the relevant thirty day limit
and if it so decides, it shall advise both the parties accordingly.
The DAB shall have sixty days to issue a binding ruling, which must be
implemented immediately. If either party is not satisfied with the DAB ruling, either
party can give notice of dissatisfaction to the other before the thirty days after the day
on which she received the decision on or before the thirty days after the day on which
the said period of sixty days expired.
Camille Paldi 19
If there is no dissatisfaction within thirty days after the day on which she
received the decision, the DAB’s decision shall become final and binding upon both
parties. The DAB’s decision may then only be overturned by settlement or arbitration.
The DAB shall consist of three people who must be suitably qualified in law,
Islamic finance, and Shari’ah. Each party shall nominate one member for the approval
of the other party. The parties shall consult both these members and shall agree upon
the third member, who shall be appointed to act as chairman. However, if a list of
potential members is included in the contract, the members shall be selected from
those on the list, other than anyone who is unable or unwilling to accept appointment
to the DAB.
The agreement between the parties and either a sole member (adjudicator) or
each of the three members shall incorporate by reference the General Conditions as
written by DWIFACJO, with such amendments as agreed between them. The
composition of the DAB shall be by nomination and then joint-selection. DAB
members are to be remunerated jointly by the parties with each paying half of any
fees. DAB members may only be replaced by mutual agreement. The appointment
of any member may be terminated by mutual agreement of both parties, but not by
any party acting alone. Unless otherwise agreed by both parties, the appointment of
the DAB shall expire when the discharge of the matter shall have become effective.
Where the parties fail or are otherwise unable to agree upon the appointment,
nomination or replacement of any member of the DAB, then the appointing official
so named in the contract shall make the appointment.
DWIFAC may establish an Ambassadors List similar to the FIDIC President’s
List,from which arbitrators and DAB members may be selected, if not specified in the
contract. Persons who have successfully completed a DWIFAC Adjudication
Assessment Workshop and International Arbitrator’s Islamic Finance Contracts
Course and applied for entry to the DWIFAC Ambassadors List of Approved
Dispute Adjudicators are entered on the List for five years. Successful attendees at an
Adjudication Assessment Workshop are required to be fluent in English and to be
thoroughly familiar with Islamic finance, law, and Shari’ah.
20 Journal of Islamic Banking and Finance, Vol. 2(2), December 2014
There may be situations where a party fails to comply with a DAB decision.
In such cases, the other party may refer the failure to DWIFAC arbitration. Where
notice of dissatisfaction has been given, both Parties shall attempt to settle the dispute
amicably before the commencement of arbitration. However, unless both Parties
agree otherwise, arbitration may be commenced on or after the fiftieth day after the
day on which notice of dissatisfaction was given. The attempt to obtain an amicable
settlement during this prescribed period of fifty days is a condition precedent to a
referral to arbitration. There is no given timeframe to refer a dispute to arbitration,
however, it should be without undue delay. Once the arbitration procedure has been
initiated, the arbitration shall commence according to the DWIFAC arbitration rules.
The arbitrator(s) shall have full power to open up, review, and revise any
decision of the DAB relevant to the dispute. Neither party shall be limited, in the
proceedings before the arbitrator(s), to the evidence or arguments previously put
before the DAB to obtain its decision nor to the reasons for dissatisfaction given in
its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence
in the arbitration. Arbitration may be commenced prior to or after completion of the
contract. The obligations of the Parties and the DAB shall not be altered by reason
of any arbitration being conducted during the progress of the contract.
The arbitration shall be conducted in the English language and any arbitral
decision shall be final and binding.All of the DWIFAC decisions (see Appendix B) are
to be published in English, French, and Arabic and the arbitration itself to be
conducted in English. In the event of a conflict of laws, the Shari’ahshall prevail.A
valid arbitration decision should lead to a verdict that conforms to the rules of the
Shari’ah (AAOIFI 2004:559). The Shari’ah and legal basis of the arbitration decision
shall be mentioned in the decision (AAOIFI 2004:559).
In the context of DWIFAC, the Center may make arrangements with the
Dubai and DIFC courts for enforceability of DWIFAC arbitration awards. However,
parties to the dispute must realize that the arbitration award issued by DWIFAC may
be overturned or enforced in other jurisdictions (International Bechtel Co. Ltd. v.
Department of Civil Aviation of the Government of Dubai300 F. Supp. 2d 112 (DDC. 2004))
or challenged in UAE courts based on Article 216 of the Civil Procedure Law. Shari’ah
Supreme Council decisions shall act as a source of precedent and shall be binding,
thus providing legal certainty to Islamic finance dispute adjudication. The Shari’ah
Supreme Council established by DWIFAC shall act as the highest Shari’ahauthority for
DWIFAC arbitration, the UAE, and the DIFC.
Camille Paldi 21
DWIFAC Relationships Courts and Tribunals
A special component of the DWIFAC dispute resolution mechanism is the
special relationship between DWIFAC, the Central Bank of the UAE, the Dubai
Courts, the DIFC, DIFC-LCIA, and DIAC. The Central Bank of the UAE
(‘CBUAE’) was formed in 1980 and is primarily responsible for overseeing banks in
the UAE, except in the DIFC, where the regulatory authority is the Dubai Financial
Services Authority or (‘DFSA’). The DFSA is a Shari’ah Systems Regulator, requiring
that any Islamic firm must have a Shari’ah Supervisory Board (‘SSB’). The DFSA is
unfortunately not itself a Shari’ahregulator and has not constituted its’ own Shari’ah
Board to oversee the regimes in Islamic firms (DFSA: 2010). Under the Shari’ah
Systems Regulator requirements, the firm must have systems and controls to
implement the SSB’s rulings and must conduct annual Shari’ah reviews and audits and
produce disclosures based on AAOIFI standards (DFSA: 2010). In general, most of
the disclosures recommended by the IFSB are already mandated in the DFSA rules
(DFSA: 2011) and the DFSA currently requires the use of AAOIFI standards for
Islamic financial business (DFSA: 2011). In addition, the DFSA utilizes the IFSB
standards in determining its capital adequacy regulations and there are also special
rules for Islamic funds and for Sukuk(DFSA: 2010).
The DIFC has been actively promoting Islamic finance with the Law Regulating
Islamic Financial Business DIFC Law No. 13 of 2004, the establishment of the Islamic
Finance Advisory Council in 2005, the presence of the Islamic International Rating
Agency (‘IIRA’) from 2006, and an MOU between the DFSA and the Securities
Commission of Malaysia facilitating cross-border flows of Islamic Finance between
the DIFC and Malaysia in 2006.
There appears to be a substantial amount of Islamic finance business being
conducted in the DIFC, under the regulation of the DFSA, however, the DIFC lacks
an adequate Islamic finance dispute resolution mechanism and centralized Shari’ah
authority.
22 Journal of Islamic Banking and Finance, Vol. 2(2), December 2014
DWIFAC, which shall be funded by Sheikh Mohammed bin Rashid Al
Maktoum (Arabicمﻮﺘﻜﻣ لآ ﺪﺷار ﻦﺑ ﺪﻤﺤﻣ), may act as the independent central dispute
resolution authority and Shari’ah regulator connecting all of the adjudication
apparatus’s of Dubai, the UAE, and the DIFC into one consolidated framework for
the adjudication of Islamic finance disputes with a centralized Shari’ah authority in the
form of the Shari’ah Supreme Council. The decisions of the Shari’ah Supreme Council
shall be binding and available to the public for review, thereby giving certainty to legal
decisions and promoting confidence amongst investors. The DIFC, Dubai Courts,
Central Bank of the UAE, and the IICRCA may refer arbitration to DWIFAC and/or
utilize the DWIFAC Ambassador’s List and facilities. In addition, DWIFAC may
utilize the expert determination, mediation, and other services of the Dubai and DIFC
Courts and the arbitrators of the IICRCA, DIFC-LCIA, DIAC, and the Central Bank
of the UAE governance unit. DWIFAC awards may be enforceable in the Dubai and
DIFC Courts through a special protocol.
Conclusion
The DWIFAC arbitration center along with the DWIFAC jurisprudence
office provides the best solution of the dispute resolution conundrum of the Islamic
finance industry, providing a globally recognized center for dispute resolution located
in one of the world’s major financial centers, which adjudicates disputes using
arbitration incorporating lexmercatoria and Shari’ah, the DWIFACJO uniform banking
law, the DWIFAC arbitration rules, and the procedural law of Dubai as well as uses
highly qualified Shari’ahand Islamic finance/law arbitrators. DWIFAC may also
organize and utilize the existing dispute resolution framework in Dubai, the DIFC,
and the UAE, consolidating the centers into one hierarchical system, which includes
the Shari’ah Supreme Council for the efficient adjudication and regulation of Islamic
finance disputes.
Acknowledgement
Thanks to Allah (swt) for guiding me on the straight path and to Professor
Habib Ahmed, for his supervision of this thesis and for guidance in Islamic Law and
Financial Transactions and Islamic Banking and Finance.
ﻦﻣ ﻢــﻟ قﻮﻠﺨﻤﻟاﺮﻜــــــــﺸﯾ ﻢــﻟ ﻖﻟﺎﺨﻟاﺮﻜــــــــﺸﯾ
He who will not thank creatures (human beings) will not thank Allah (SWT).
Camille Paldi 23
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Abbreviations
AAOIFI Accounting and Auditing Organization for Islamic Financial
Institutions
ADCCAC Abu Dhabi Commercial Conciliation and Arbitration Center
BAFIA Banking and Financial Institutions Act1989 (Malaysia)
BBA Bai Bithamin Ajil
BCDR-AAA The Islamic Financial Mediation and Arbitration Center
BDB Blom Development Bank
BNM Bank Negara Malaysia
CBUAE Central Bank of the United Arab Emirates
CBM Act 2009 Central Bank of Malaysia Act 2009
CRCICA Cairo Regional Center for International Commercial Arbitration
DAB Dispute Adjudication Board
DFSA Dubai Financial Services Authority
DIAC Dubai International Arbitration Center
DIFC Dubai International Financial Center
DIFC-LCIA Dubai International Financial Center- London Court of
International Arbitration
DWIFAC Dubai World Islamic Finance Arbitration Center
DWIFACJO Dubai World Islamic Finance Arbitration Center Juriprudence
Office
FIDIC International Federation of Consulting Engineers
IDB Islamic Development Bank
IFSB International Financial Services Board
IICRCA Islamic Center for Reconciliation and Arbitration
IIRA Islamic International Ratings Agency
IMAC International Islamic Mediation and Arbitration Center
ISRA International Shari’ah Research Academy
KLRCA Kuala Lumpur Regional Center for Arbitration
KLSE Kuala Lumpur Stock Exchange
LOFSA Labuan Offshore Financial Services Authority
PSA Property Sale Agreement
QICCA Qatar International Center for Commercial Arbitration
QFC Qatar Financial Center
RCICAL Regional Center for International Commercial Arbitration
SAC Shari’ah Advisory Council
SIAC Singapore International Arbitration Center
SSA Shari’ah Supervisory Authority
SSB Shari’ah Supervisory Board
TID Investment Dar
TRAC Tehran Regional Arbitration Center
UAE United Arab Emirates
