Arbitration & Shariah

Arbitration is defined in Shariah (Islamic law) as "two or more parties choosing a judge to resolve their dispute and their claim".

From a Shariah perspective, arbitration is known as "tahkim" which has the function to resolve any disputes referred to it by conflicting parties. The word tahkim literally means, to entrust a third party neutral to adjudicate the dispute (Idid & Oseni, 2014).

Tahkim or arbitration in Islam is considered a settling of affairs outside the court where disputes are generally settled.

The following are the three general principles of arbitration: (i) arbitration is consensual; (ii) arbitration is a mutual process that requires the consent of both parties; and (iii) arbitration can only be initiated, if the parties have agreed to initiate it.

One of the core principles of arbitrators is the need to be impartial and a duty to disclose anything that may suggest or appear to look as if the particular arbitrator is biased. 'The International Bar Association (IBA) Guidelines on Party Representation in International Arbitration’ are non-binding but are generally used as guiding principles in international arbitration.

Well recognized examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters;?(v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction?and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.?

Shariah is derived from two main sources: the Quran, which is considered the direct word of God, and hadith—thousands of sayings and practices attributed to the Prophet Mohammed that collectively form the Sunna.

Arbitration is referred to and promoted in the Quran, most explicitly at Surat An-Nisa, Ayah 35 (4:35 Quran), which states that:

“If you fear dissention between a married couple, send forth an arbiter from his family and an arbiter from her family. If they desire reconciliation, God will bring them together.”

In sum, there are two agreed-upon derived sources of Shariah: (i) scholarly consensus (ijma'); and (ii) legal analogy (qiyas).

Impartiality of arbitrators; confidentiality in arbitration proceedings; and finality, in arbitral awards are the three pillars of a well-structured arbitration proceedings.

Arbitral tribunals apply the law(s) chosen by the parties. Where the parties' agreement is silent, courts have held that an arbitrator has broad authority to determine the appropriate choice of law rules. In practice, the tribunal often will apply the choice-of-law and rules of the law in the seat of arbitration.

It is contended that the world’s actual first "International Islamic Mediation & Arbitration Centre (IMAC)" was established in 2008 by 'The Arab Chamber of Commerce & Industry' in the Hong Kong SAR of China;?followed by the "International Islamic Centre for Reconciliation and Arbitration (IICRA)" in Dubai, who positions its predating to being established in 2005; as does the "Asian International Arbitration Centre?(Malaysia) (AIAC)" formerly known as 'The Regional?Centre?for Arbitration, Kuala Lumpur (RCAKL)'?established?in 1978.

Proclamations worthy of arbitration under Shariah themselves perhaps...

Food for thought!