이슬람국가에서의 국제상사중재의 특성에 관한 연구
Study on the Characteristic of International Commercial Arbitration in Islamic Countries
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The Islamic countries are governed by Islamic law, also known as Sharia. Shariacontrols not only their personal and religious lives, but also their commercial andpolitical things. Arbitration existed in the Middle East before the emergence ofIslam. Even the Quran and the Prophet Muhammad approved of the use ofarbitration to settle disputes, international commercial arbitration based onWestern countries’ practices gained notoriety the latter half of the 20th centurybecause of the arbitral awards rendered on a devaluation of lslamic law in thearbitration of oil disputes. But a resurgence of international arbitration arose inmany Islamic countries due to globalization and growth in international commerce. The distinct characteristics of international commercial arbitration in theseIslamic countries, especially in strict disciplined countries such as Saudi Arabian,that arbitration is proceeded by Muslim arbitrators, and the arbitrators are alsorequired to render an award that is enforceable under Sharia. Furthermore, thesecountries require their courts or authorities to review all arbitration awards toensure that each award is given in accordance with the Sharia. Even though mostof the above countries joined the New York Convention, the Convention let themallow to align themselves more closely to international dispute resolution standardswithout having no abandon their public policy based on the Sharia because of itsexception clause. One frequently raised issue in Islamic commercial arbitration isthat Sharia does not recognize the imposition of interest in any contract. Anotherone is that Muslim parties will often require the application of Islamic law when an arbitration agreement is silent as to choice of law. But in this case, a westerninternational commercial arbitration will usually be the law of the jurisdiction inwhich the arbitration is seated. Even though Sharia has historically been quite humane, affording equality andprotection in some areas that Western law did not, foreign investors who areoperating in a deeply religious Islamic countries will potentially be giving up someprocedural rights and be limited in the types of remedies avaliable to them ininternational commercial arbitration.
Abstract
The Islamic countries are governed by Islamic law, also known as Sharia. Shariacontrols not only their personal and religious lives, but also their commercial andpolitical things. Arbitration existed in the Middle East before the emergence ofIslam. Even the Quran and the Prophet Muhammad approved of the use ofarbitration to settle disputes, international commercial arbitration based onWestern countries’ practices gained notoriety the latter half of the 20th centurybecause of the arbitral awards rendered on a devaluation of lslamic law in thearbitration of oil disputes. But a resurgence of international arbitration arose inmany Islamic countries due to globalization and growth in international commerce. The distinct characteristics of international commercial arbitration in theseIslamic countries, especially in strict disciplined countries such as Saudi Arabian,that arbitration is proceeded by Muslim arbitrators, and the arbitrators are alsorequired to render an award that is enforceable under Sharia. Furthermore, thesecountries require their courts or authorities to review all arbitration awards toensure that each award is given in accordance with the Sharia. Even though mostof the above countries joined the New York Convention, the Convention let themallow to align themselves more closely to international dispute resolution standardswithout having no abandon their public policy based on the Sharia because of itsexception clause. One frequently raised issue in Islamic commercial arbitration isthat Sharia does not recognize the imposition of interest in any contract. Anotherone is that Muslim parties will often require the application of Islamic law when an arbitration agreement is silent as to choice of law. But in this case, a westerninternational commercial arbitration will usually be the law of the jurisdiction inwhich the arbitration is seated. Even though Sharia has historically been quite humane, affording equality andprotection in some areas that Western law did not, foreign investors who areoperating in a deeply religious Islamic countries will potentially be giving up someprocedural rights and be limited in the types of remedies avaliable to them ininternational commercial arbitration.
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