International Arbitration in Arab States - Dissertation Example

The primary data consist of statutes and cases providing direct evidence of the arbitration law and practices. Secondary data consist of textbooks, journal articles, and other publications relevant to international commercial arbitration, and arbitration in the Arab Middle East. Research results indicate that Islamic law has significant influence on attitudes, laws and practices relative to arbitration and international arbitration in the Arab Middle East. However, while Egypt and Jordan have made significant progress in modernizing their arbitration laws to accommodate increased international trade, Saudi Arabia, the most conservative Islamic state in the region is struggling to make these accommodations.

Although a new law is currently underway in Saudi Arabia, its future is uncertain given the long history of ambivalence toward international commercial arbitration informed by unsatisfactory experiences highlighted by the ARAMCO decision in 1958. Despite Egypt’s progress it has also recently taken a step backward with the Ministry of Justices Decree of 2008. This Decree mandates that all arbitral awards are reviewed in secrecy by the Ministry of Justice.. 90; Elsaman, 2011, p. 8). Globalization has also increased the extent to which all states interact with one another in international commerce and international trade.

As a result, states recognizing the inadequacy of domestic courts to deal with international commercial disputes have increasingly turned to international commercial arbitration as a more feasible method of resolving domestic disputes. However, according to Gemmell (2006), due to Islamic traditions and influences, the Islamic Middle East which is largely the Arab Middle East has not fully embraced a modern system of international commercial arbitration (p. 169). Of particular concern is the fact that although arbitration is consistent with Islamic tradition, enforcing international commercial arbitral awards in the Arab Middle East can be problematic.

A number of national courts in the Arab Middle East, particularly Islamic courts have been averse to enforcing international commercial arbitral awards on the grounds that the award is inconsistent with public policies or more particularly, Islamic law and traditions (Elsaman, 2011, p. 8). This is arguably a loophole facilitated by international commercial arbitration itself. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter the New York Convention) permits member states to refuse enforcement of an award if it is found to be contrary to public policy (New York Convention, Article V(2)(b)).

Complicating matters, the New York Convention does not define the phrase public policy. International commercial arbitration in the Arab Middle East is largely influenced by Islamic law and traditions more broadly known as Sharia compliant laws and traditions (Kutty, 2006, p. 566). Sharia in this regard