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Saudi law and judicial practice in commercial and banking arbitration
... According to Madawi (2006), the economic performance of firms is always dictated by the management practices that are adopted in their normal running. Baamir (2010) notes that the management is expected to offer leadership that would steer a firm into economic success. ...
Management practices employed by a firm can have direct impacts on its economic performance in the market. This research focused on how economic performance of two banks located in the City of Riyadh is affected by their management practices. These two banks were Samba Financial Group and Saudi British Bank. It was realized that management skills applied by an organization would pose direct effects on the economic performance of that firm. Samba Financial Group has designed management practices that are meant to offer customers what they need in the best manner possible. On the other hand, most of the management practices of Saudi British Bank have always been focusing on motivating employees. In both cases, it is clear that the approach taken by the management will have direct impact on a firm’s economic performance.
... According to Abdul Rahman [6], the word sulh may be translated as conciliation and mediation since there in no semantic different between them in Arabic language. Muhammad [7] mentioned that this method of disputes resolution has been embraced by Muslim elders in many societies and involves a clear, step-by-step process of mediation (wasata), arbitration (tahkim) and reconciliation (sulh) derived from the episodes from the life of the Prophet himself. ...
Islam is a way of life that guides the Muslims from all perspectives, and as portion of Islam, it also promotes peace and conciliation in resolving disputes. The Al-Quran provides guidelines in dispute resolution through a third party called Sulh. Sulh refers to the process of mediation, arbitration and reconciliation that takes place when the parties involved agree on a process of resolving a dispute with a third party mediator, who eventually will ensure that both disputed parties will be satisfied by the outcomes. This work is focused on community mediation, which involved with the disputes between the community members. In Malaysia, Sulh were actually practiced by the Malays prior to the time of the Portuguese, the Dutch and the British. The session will be conducted by a third party who normally a respected and elder person in the society, whom also held the position as the headman (Penghulu or Ketua Kampung) or Imam (a religious leader). Nowadays, given the plural society of Malaysia, and the era of Internet, it is crucial for Sulh to be available online. With the use of ICT tools, Sulh can be promoted to society, and if it is a part of e-government efforts, then it will encourage the society to be involved with the government's mission. The online Sulh will not merely act as an interface for those parties involved. The challenges of making the online system secured, the correct ways of ensuring the data accuracy, understanding on methods that will be used for data propagation (among others), are existed in the domain of Computer Science (CS). There are many possible CS approaches, but the work will focus on Computational Intelligence (CI) techniques, with special interest in connectionist models.
The place of arbitration within the Syrian legal system has received scant academic and professional attention, and as such, remains largely unstudied. Shedding much-needed light on the nature of arbitration in Syria as a resilient form of ancient customary Arab alternative dispute resolution, this contribution appraises the salient features of the Syrian Arbitration Law 2008 and arbitration-related provisions within recent Syrian legislation. It aims to understand the position of arbitration in Syria between existing national and international law frameworks for dispute settlement and to assess the potential for establishing independent, transparent, and efficient tribunals to resolve disputes arising out of ongoing conflicts that have plagued the country since 2011. If arbitration proves to be a mechanism for ordering the peaceful settlement of postwar disputes within and concerning Syria, parties, practitioners, and stakeholders must employ perspectives that include and are capable of navigating Syria’s existing arbitration landscape.
Understanding Islamic law is crucial not only for Muslims, but for non-Muslims who work with Muslims in legal contexts as well as for anyone wanting to understand the role of Islam in the world today. For unlike western legal systems where religious and legal spheres are kept separate, Islamic law is all-encompassing, directing all human actions. Legal scholar Hisham Ramadan brings together articles to give an excellent overview of the formation of Islamic law and its role in contemporary Islamic and Non-Islamic states. Following an overview of Islamic Law, chapters cover Islamic criminal law, International Humanitarian Law, contract law, & family law. A concluding essay offers an explanation of the legal value of Islam and appendices include original Islamic legal documents from Muhammad's time until today.
Before 9/11, few Westerners had heard of Wahhabism. Today, it is a household word. Frequently mentioned in association with Osama bin Laden, Wahhabism is portrayed by the media and public officials as an intolerant, puritanical, militant interpretation of Islam that calls for the wholesale destruction of the West in a jihad of global proportions. In the first study ever undertaken of the writings of Wahhabism’s founder, Muhammad Ibn Abd al-Wahhab (1702-1791), Natana DeLong-Bas shatters these stereotypes and misconceptions. Her reading of Ibn Abd al-Wahhab’s works produces a revisionist thesis: Ibn Abd al-Wahhab was not the godfather of contemporary terrorist movements. Rather, he was a voice of reform, reflecting mainstream 18th-century Islamic thought. His vision of Islamic society was based upon a monotheism in which Muslims, Christians and Jews were to enjoy peaceful co-existence and cooperative commercial and treaty relations. Eschewing medieval interpretations of the Quran and hadith (sayings and deeds of the prophet Muhammad), Ibn Abd al-Wahhab called for direct, historically contextualized interpretation of scripture by both women and men. His understanding of theology and Islamic law was rooted in Quranic values, rather than literal interpretations. A strong proponent of women’s rights, he called for a balance of rights between women and men both within marriage and in access to education and public space. In the most comprehensive study of Ibn Abd al-Wahhab’s interpretation of jihad ever written, DeLong-Bas details a vision in which jihad is strictly limited to the self-defense of the Muslim community against military aggression. Contemporary extremists like Osama bin Laden do not have their origins in Wahhabism, she shows. The hallmark jihadi focus on a cult of martyrdom, the strict division of the world into two necessarily opposing spheres, the wholescale destruction of both civilian life and property, and the call for global jihad are entirely absent from Ibn Abd al-Wahhab’s writings. Instead, the militant stance of contemporary jihadism lies in adherence to the writings of the medieval scholar, Ibn Taymiyya, and the 20th century Egyptian radical, Sayyid Qutb. This pathbreaking book fills an enormous gap in the literature about Wahhabism by returning to the original writings of its founder. Bound to be controversial, it will be impossible to ignore.
Arbitration of Commercial Disputes is intended for anyone who is involved in the arbitral process. It provides a thorough and up-to-date analysis of both English and international arbitration law. The book initially deals with the principles of arbitration as examined from an international perspective. The authors identify fundamental principles of arbitration law that are common to all jurisdictions, and shows how some principles of arbitration law are treated differently in various jurisdictions. The book also examines some of the key jurisprudential questions, such as whether an international commercial arbitration is anchored to the place or seat of the arbitration, whether an arbitral award can be enforced even it has been annulled, and the continuing development and use of the lex mercatoria to resolve international commercial arbitrations. The sections on English arbitration law are structured around the provisions of the English Arbitration Act 1996. The work examines in turn the parties to the arbitration, the arbitration agreement, the powers and jurisdiction of the arbitral tribunal, the making of an award and its enforcement. In order to assist practitioners the authors have particularly focused on areas of the law which have changed over recent years and which are still developing. The book gives detailed analysis of court decisions and trends in areas where no clear authority exists, such as in the incorporation of arbitration clauses, and the drafting of arbitration notices. The book also deals thoroughly with costs and appeals. The final section of Arbitration of Commercial Disputes provides a comprehensive set of precedents. The precedents section includes both standard arbitration clauses and bespoke agreements, plus examples of clauses dealing with other forms of ADR prior to arbitration. There are also a number of procedural precedents including a set of Terms of Reference, Directions and a confidentiality agreement. There is finally a set of Awards and a section on applications to the English courts.
Wael B. Hallaq is regarded as one of the leading scholars in the field of Islamic law. In a path-breaking new book, the author shows how authority guaranteed both continuity and change in Islamic law. While the role of the law schools in augmenting these processes was of the essence, the author demonstrates that it was the construction of the absolutist authority of the school founder, an image which he suggests was actually developed later in history, that maintained the foundations of school methodology and hermeneutics. The defence of that methodology gave rise to an infinite variety of individual legal opinions, ultimately accommodating changes in the law. Thus the author concludes that the mechanisms of change were embedded in the very structure of Islamic law, despite its essentially conservative nature. This book will be welcomed by specialists and scholars in Islamic law for its rigour and innovation.
This article addresses the contrast between the procedural fairness protections that are built into common law judicial practice and the lack of such safeguards in international commercial arbitration. Canvassing a variety of jurisdictions and international arbitration rules, the author concludes that procedural rights in international arbitration are never guaranteed and are at best extremely variable. The solution to such systemic problems is to write procedural requirements into any international commercial agreement so that in the event of a dispute there is some consensus about how the arbitration will be conducted. Schedule I is a table that explains the general operation of the various statutory instruments that regulate international commercial arbitration. Schedule II is an example of the type of drafted provisions that two private parties might consider grafting onto an international commercial agreement.
Bilateral and multilateral investment treaties, such as NAFTA, give foreign investors substantive rights - such as freedom from expropriation - as well as the right to sue host governments for violations of the substantive rights enumerated in the investment treaties. In the last five years, the number of arbitrations arising under investment treaties has skyrocketed; billions of taxpayer dollars are at stake and government conduct, which would otherwise past domestic muster, is subject to enhanced international scrutiny. The proliferation of these bilateral and multi-lateral investment treaties has led to an unprecedented increase in the number of arbitration tribunals convened to resolve investor-state disputes. Arbitral tribunals are now testing and evaluating a variety of international law rights for the first time. These private tribunals consider legal issues that impact the international economy, public policy and international relations, but they do so in a vacuum largely because of gaps in the academic literature and confidentiality obligations that prevent public decision-making. Substantive obligations in investment treaties are remarkably similar; notwithstanding these similarities, in the absence of valuable guidance from scholars or appellate bodies, arbitral tribunals have come to inconsistent decisions on the meaning of fundamental international law rights. This Article recommends a framework for analysis as well as a series of reforms designed to prevent inconsistent decisions from occurring and to correct inconsistencies when they occur. In terms of preventative measures, the article is a call to arms for academics to contribute to the literature in this emerging discipline to provide authoritative guidance for tribunals to use during the decision making process; it also recommends changes to institutional rules and treaties to enhance transparency and promote public scrutiny. In terms of corrective measures, this article rejects the treaty-by-treaty approach previously suggested within the literature. Instead, it proposes the creation of one independent and permanent appellate body with the authority to review awards rendered under the entire investment treaty network. These measures will promote the integrity and legitimacy of a private dispute resolution system with wide-ranging public implications.
Long before the rise of Islam in the early seventh century, Arabia had come to form an integral part of the Near East. This book, covering more than three centuries of legal history, presents an important account of how Islam developed its own law while drawing on ancient Near Eastern legal cultures, Arabian customary law and Quranic reforms. The development of the judiciary, legal reasoning and legal authority during the first century is discussed in detail as is the dramatic rise of prophetic authority, the crystallization of legal theory and the formation of the all-important legal schools. Finally the book explores the interplay between law and politics, explaining how the jurists and the ruling elite led a symbiotic existence that - seemingly paradoxically - allowed Islamic law and its application to be uniquely independent of the 'state'.
This book provides an overview of the practice of Islamic finance and the historical roots that define its modes of operation. The focus of the book is analytical and forward-looking. It shows that Islamic finance exists mainly as a form of rent-seeking legal-arbitrage. In every aspect of finance - from personal loans to investment banking, and from market structure to corporate governance - Islamic finance aims to replicate in Islamic forms the substantive functions of contemporary financial instruments, markets, and institutions. By attempting to replicate the substance of contemporary financial practice using pre-modern contract forms, Islamic finance has arguably failed to serve the objectives of Islamic law. This book proposes refocusing Islamic finance on substance rather than form. This approach would entail abandoning the paradigm of ‘Islamization’ of every financial practice. It would also entail reorienting the brand-name of Islamic finance to emphasize issues of community banking, micro-finance, and socially responsible investment.
Where a state and an alien agree in a contract to arbitrate disputes relating to the contract, in terms which indicate that arbitration is to be the exclusive remedy, need the alien exhaust any other remedy before an international claim may be presented relating to a dispute which falls within the scope of the arbitration clause ?
Muftis are literate scholars who specialise in Muslim legal-religious interpretation. They provide an example of a higher level of systematic indigenous interpretation than the common sense, everyday constructions of reality that have been discussed in anthropological accounts. I discuss the institutional form of the muftiship, and contrast it with the judgeship, with reference to indigenous ideal-types found in several categories of written Muslim social thought. This ideal form is then compared with the identities of historical and contemporary muftis in Yemen. The interpretive method employed by muftis joins a Greek-derived concept of analogy with recitation and hermeneutics. While their method is structurally similar to scriptural interpretation, muftis are worldly interpreters who address practical life problems posed by lay questioners.
Important reforms have been introduced in various fields of law, some of them rather bold, considering the theocratic image of Saudi Arabia. The approach to reform is more pragmatic than theoretical. By means of a wide gamut of devices intended to legitimize reform by relating it to the sources of religious law, it serves as an administrative mechanism designed to adapt the normative and institutional system of a theocracy, rooted in a religious revival movement, to the conditions of a state, a society and an economy faced with the challenges of the modern era. The muftīs play an important part by ensuring the religious-legal legitimation of the reformist policy and thus protecting the stability of the regime and its legitimacy in the eyes of the people. The article analyzes the reasons for the cooperation between the ʿulamāʾ and the umarāʾ, which began in 1774 and whose theoretical basis is Ibn Taymiyya's political doctrine. The reformist policy is likely to have far-reaching repercussions on Islamic law; the ʿulamāʾ are helping, in the long run and unconsciously, to undermine the traditional legal doctrine without a new doctrine taking its place. Moreover, like the Ottoman ʿulamāʾ who cooperated with the sultans in the period of reforms, the Saudi Arabian ʿulamāʾ are not aware that in the long run, by supporting the reformist policy, they destroy themselves as a class.
Resolving compensatory interest claims in international arbitrations is frequently complicated, time-consuming and expensive and typically results in inconsistent and arbitrary, as well as costly, awards. Professor Gotanda examines the practice of awarding such interest and offers a new approach that would provide arbitrators with clear and uniform guidelines to evaluate interest claims, bring consistency and predictability to the area, and enable the transnational contracting parties to resolve their disputes more equitably and efficiently.
The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Convention) provides for a truly international arbitration machinery, operating under the auspices of the International Centre for Settlement of Investment Disputes (ICSID).
Agreements providing for the arbitral settlement of disputes arising out of contracts between foreign sovereigns and private contracting parties have become a permanent feature of transnational commerce.
This particular favor for the arbitral, as opposed to the judicial, settlement of state contract disputes is attributable to a number of reasons, some of which are conventional and others the consequence of contemporary developments. Traditionally, arbitration has proved attractive because of the special expertise that it may provide and lack of publicity, which may increase the willingness of the losing party to comply with the award.