El currículo explícito del C.E.L: la interdisciplinariedad

It is well accepted and understood that the principles of Sharia are to be included in Saudi Arbitration Law.This is even more evident because its role has been maintained and enforced in the development of Saudi arbitration over the years. The question about whether or not the principles of Sharia have been prioritised in the development of Arbitration Law is designed to find out if the respondents feel that the prioritisation of such principles was intentionally designed to ultimately refuse awards to protect Saudi commercial interests.

Overall, most of the respondents did not feel that the consideration and inclusion of Sharia principles had been prioritised as a way to refuse awards. It is important to note that the development of the arbitration regime in Saudi Arabia has been to ensure that the country can further participate in international commercial activity and therefore,

192

the reforms are a reflection of the times and the needs of the times. According to the respondents, the inclusion of Sharia principles should not be compromised.One of the respondents expressed this idea in the following:

The principles of Sharia will always be prioritised when we develop the laws, this has always been the case, not just for arbitration but for all of the laws in our country. This does not mean that we include Sharia because we want to refuse awards, it is very that using Sharia is not something new we always did it. (Waleed)

Furthermore, the idea that was also been expressed in the above is that Sharia will always be used. This was also expressed by another respondent who brought attention to the idea that Sharia is for all situations at all times.This respondent said the following:

Islamic Sharia is legible for each place and time, and in case there is no reference in the Islamic Sharia, this does not mean a shortage of it, it was rather left for human discretion. I do not think that the principles of Sharia refuse arbitration. (Al Shaibani)

Interestingly, in the statement above, the respondent says that they do not think that the principles of Sharia are for refusing arbitration.This implies that it is not the intention to use the principles of Sharia to refuse awards, which is a common argument about the use of the principles that has been expressed by a number of the respondents in this study.

Further evidence that the respondents were sure about the intended use of the principles of Sharia as public policy is that they are not prioritised for other purposes,

193

i.e. the respondent clarified those situations where Sharia was used as a reason for a refusal to recognise or enforce an award in the following statement:

Foreign arbitral awards will be approved if they are matching with the Sharia principles and will not be approved if they are not matching with the Sharia principles. Hence, the Sharia principles are properly applied when approving the foreign arbitral awards with no contradiction to it. (Atif)

The same respondent also expressed the idea that the principles of Sharia are ‘blessed’ and because of this, they make the law regarding arbitral awards even better and offer more protection.They said the following:

Of course not, these principles are blessed seeking to add what makes arbitral awards better under the legal protection. (Atif)

Here, it has been clearly shown that the respondents feel that Sharia principles are applied fairly. This idea has also been supported by the example that where an award contains interest payments, the court will still enforce the award but without the interest payments. Therefore, this is an indication that the Saudi authorities are concerned with the continuance of commercial activity, because if this was not the case, they would have used the interest payment as a contravention of public policy and refuse to enforce the entire award which they would be in their rights to do. It has to be borne in mind that Saudi Arabia is known for its strict adherence to Sharia principles and it has managed to adhere to these principles, in other words, it has had the courage of its religious convictions, while at the same time upholding the spirit of the arbitration law which is designed for the recognition and enforcement of foreign arbitral awards.

194 6.1.9 More clarity needed for foreigners

Despite the fact that the respondents felt that it was clear that the principles of Sharia were something that had to be adhered to and that there was no unjust or unfair use of these principles, a number of respondents expressed the idea that they understood the concerns that foreign commercial parties may have, and there were even some suggestions made in relation to this idea.One of the respondents who was involved in arbitration with foreign organisations said the following in response to the question as towhetherthe refusal of foreign arbitral awards on the grounds of public policy is fair in Saudi Arabia:

It is fair because the law is very clear about public policy and what it means for us that it is important that it is not broken. But I also want to be fair to the foreign company, they may not understand the Islamic principles that we have and if we want a better business relationship with them, we should explain more clearly in the law what they are. Things like interest are clear to everyone, but it is not always that straightforward when decisions are made (R8).

In the statement above, there is an expression for the need to codify Sharia principles so that they are clear and understandable to foreign investors.

We have improved out arbitration law many times to make it easy for foreign investors but to be honest with you I do feel sorry for foreigners when an award is refused and we cannot expect them to always understand the reasons why this happens. You have to remember that our public policy is not like

195

other public policy because it is especially for Islamic law and maybe they will not understand it (R9)

The emerging theme here is that foreigners may not understand,nor should they be expected to understand, the principles of Sharia. Furthermore, the respondents seem to empathise with them about this issue.

Another statement made by another respondent also supported this idea, saying the following in response to the same question:

Yes it is fair because the decisions are meeting with our Sharia principles, but I do understand why the foreigners think that it is not fair because they don’t understand anything about our culture that we try to protect here. When an award is refused it should be explained much more clearly to the foreigners, so they understand the reasons (Abo Jaber)

The same respondent said the following in response to the question about whether or not the new Arbitration Law in Saudi Arabia makes it easier for foreign contractors and investors:

Yes the new law makes it much easier for foreigners because they are free to choose the terms of their contract and they are free to choose where the arbitration will take place. The courts he will recognise and enforce awards with no issues as long as there is not a problem with public policy. But I still think there is room for improvement where the law should make the public policy much clearer so they can be referred to by all of the parties that are involved so they know their own position in the enforcement procedure (Abo Jaber)

196

Again, in the statement above there is a call for more clarity with the new Arbitration Law, particularly in reference to public policy or Sharia principles. This idea ties in with the suggestion to codify Sharia principles which is something that is possible and has been seriously considered by the authorities in the country. The codification of Sharia principles will allow foreign participants in a commercial relationship to understand what the situation will be if they are involved in a dispute and go through the arbitration process.

The Enforcement Law was also a concern for some of the respondents and there were recommendations made in response to the question about whether the Enforcement Law is used to refuse awards unfairly:

I do not have enough information, but I tend to say No. I assume that the Enforcement Law uses the same principles of public policy protection and it is just another layer in the process, but I do not fully understand how it works. l I think if we have this in our procedures here then it is important that Saudi businesses and their foreign investors should be clear about this law and how it fits in with the whole procedure. (Abo Jaber)

So far, the findings have suggested more clarity. However, this emphasis of more clarity when considered against other findings does not suggest that a lack of clarity is a problem that is related to the insincere use of the public policy clause to refuse awards in an unfair way. It is more the case that the recommendations that are made by the respondents are simply to improve the existing situation. Specifically, there has much praise for the improvement in the law in relation to arbitration procedures generally, but it is still felt that there is a need to improve clarity in relation to public policy and arbitration procedures.

197