The Impact of the Shari’ah on Foreign Direct Investment and Arbitration: The Case of Saudi Arabia and its Vision 2030
This study seeks to determine whether the government of Saudi Arabia, in promoting its Vision 2030 project, can strike a balance between safeguarding the Kingdom’s Islamic heritage and protecting the interests of foreign investors in Saudi Arabia. Following a critical review of the extant literature, it establishes that the government has been unable so far to achieve that delicate balance because of the rigid interpretation of the Shari’ah by traditionalist and anti-Western (anti-international) doctrinaire scholars who became prominent after ‘the closing of the gates of ijtihad’ (independent reasoning). The study also establishes that the Shari’ah has been fundamentally flexible from the earliest times, and that early Muslims embraced free trade, and preferred arbitration as dispute resolution mechanism without gender bias. Thus, this study tests the hypothesis that the rigid interpretation subsequently imposed by doctrinaire conservatives explains why the use of the Shari’ah to settle disputes constitutes an obstacle to FDI in Saudi Arabia. In order to test the hypothesis and achieve the research aim, a mixed methods approach is employed that involves both doctrinal and empirical methods. The latter is used because the Shari’ah is not codified and courts are not required to comply with any precedent, making it difficult to predict outcomes either in Saudi courts or in arbitral tribunals, wherever in the world arbitrators sit. The study reveals that although the rigid interpretation and application of the Shari’ah is an obstacle to FDI, the Hanbali fiqh should be interpreted and applied in a flexible manner in regard to commercial matters, including international commercial arbitration. Moreover, other Schools of Jurisprudence, such as the Hanafi, are much more flexible than the Hanbali School of Jurisprudence. As such, it is important to determine whether judges and arbitrators in Saudi Arabia, and arbitrators sitting outside Saudi Arabia, may refer to a Sunni School of Jurisprudence other than the Hanbali School in order to invoke another interpretation of the Shari’ah that is more advantageous to trade and investment in Saudi Arabia. This is in line with the istihsan principle that enables Islamic judges to choose more equitable solutions where a literal interpretation of the Quranic verses may not promote the public good, or may cause a detriment to the general public in Saudi Arabia.
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