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Islamic arbitration and reformulating principles concerning role of arbitrators, appointment of women arbitrators, and enforcement of arbitral awards in light of modernity and change of culture in Islamic world

posted on 2023-08-03, 17:33 authored by Abdulmajed Alrajhi

Arbitration, as an alternative dispute resolution mechanism, was well known in the Arab region before the establishment of the Islamic religion. Islamic law continued the practice of arbitration to resolve disputes and created a new type of arbitration specific to family disputes. In fact, the first arbitration clause under Islamic law was concluded in the Medinah treaty between Muslim Arabs, Non-Muslim Arabs, and Jews in 622 A.D., which shows the historical legacy of arbitration practices in Islamic legal traditions.Despite the profound historical precedent, there are growing concerns about arbitration practices under Islamic Law. Some of the main issues concerning modern Islamic arbitration are: (1) the roles of arbitrators; (2) the validity of appointing women arbitrators; and (3) enforceability of arbitration awards. These concerns are the result of recent demands from the Islamic world to improve Islamic arbitration practices in accordance with modern international arbitration as well as changes in cultural habits and customs. Therefore, the need to reformulate and modify Islamic arbitration appeared in light of the changes from modernity in the Islamic world.The first issue focuses on a precise understanding of the role of arbitrators, which is a divisive issue in Islamic arbitration since scholars have different opinions on the specific role of arbitrators. The second issue is concerned with the absence of women arbitrators in Islamic arbitration in the Kingdom of Saudi Arabia, which, along with the lack of women present in international arbitration, concerns the international arbitration community. The third issue highlights the enforcement of arbitration awards and the difficulty faced in some Muslim countries, such as Saudi Arabia, when Islamic law serves as the basis for their public policies.The spread of globalization and diffusion of international investment and business projects on an international level has promoted international arbitration as the preferred vehicle for dispute resolution. Therefore, by analyzing some of the foreseeable issues of Islamic arbitration under Islamic law and then providing tools to overcome these obstacles, Islamic arbitration will meet international arbitration standards and will be accepted to govern and resolve disputes.







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