Freedom of Parties in International Commercial Arbitration: An Analytical and Comparative Study of Shariah, The Saudi Arbitration Law 2012 and The English Arbitration Act 1996

This thesis examines the extent of the parties’ freedom to establish, form and terminate an international commercial arbitration agreement under Shariah and the Saudi Arbitration Law 2012. More specifically, this thesis aims to determine the amount of the freedom that parties to international commercial arbitration experience under Shariah—an issue that, to date, has been overlooked by Sunni scholars. The research also seeks to identify the compatibility of the new Saudi arbitration system with Shariah with regard to the freedom of the arbitration parties. The thesis further seeks to explore and evaluate the degree to which Shariah and the Saudi arbitration system can benefit from the practices of the English arbitration system as established under the English Arbitration Act 1996. Using doctrinal and comparative research strategies, the thesis analyses and compares the various opinions and evidence of Shariah scholars from the four Sunni schools over the last 1,200 years in relation to the freedom of parties in international commercial arbitration. It then compares the position of Shariah to the new Saudi arbitration system while also examining and measuring the position of these two systems against the English arbitration law and its case law. The research demonstrates that, in light of the primary sources of Shariah and Shariah’s main principles—and contrary to the common belief of most contemporary legal writers—the parties to international commercial arbitration in Shariah enjoy broad freedom in most aspects of arbitration (for example, in the establishment of an arbitration agreement with respect to both existing and future disputes, and in choosing the rules of procedure and the rules of evidence). This freedom is even broader than what is offered by most modern arbitration laws (such as the Model Law). In addition, the thesis argues that there is no legal obstacle in Shariah that prevents parties to international commercial arbitration from accessing the same freedom under the English system, as parties to arbitration in both systems must observe public policy (the right of Allah) and the mandatory rules in all systems. At the same time, the thesis posits that despite the assertion of the new Saudi arbitration law that Shariah provisions must be respected in all arbitration aspects, in many respects (and unlike its predecessor) the new law does not follow any of the approaches of the four Sunni schools on the parties’ freedom.

Grantor dc:publisher

Oxford Brookes University

Year dc:date

2018

Author dc:creator

• Almuqham, Ahmed

Contributors dc:contributor

• Cheyne, Ilona
• Edge, Peter

Statement dc:rights

• All rights reserved

Language dc:language

en

DOI dc:identifier

https://doi.org/10.24384/1jfx-ev93

OAI identifier oai:identifier

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