FASE DOS: MIRA A TU ALREDEDOR

It is emphasised in the new Arbitration Law that Sharia principles have to be considered by both arbitrators and parties when they want to enforce an international arbitral award in the country.If this does not happen, then there is a possibility that the award will not be recognised or enforced.

Although Saudi courts have a wide scope and are flexible when they assess claims for damages, the amount of compensation involved and fault of negligence, due to the principles of Sharia, Saudi courts often only award direct and actual damages that can be quantified. Therefore, in Saudi Arabia, where a court awards damages, they are not speculative, consequential, punitive or indirect.408 This principle also includes the loss of profits and emotional distress, therefore, it is often the case that smaller damages are awarded in Saudi Arabia.

In relation to these principles that are based on Sharia, they are also extended to a situation where the Saudi courts consider international arbitral awards. Where a Saudi court considersthe recognition and enforcement of an international arbitral award, the scope for recognition and enforcement is limited by the abovementioned principles, and this is enforced by the fact that the new Arbitration Law requires the courts to be Sharia compliant.

408_{S. Al-Ammari and A. Timothy Martin, "Arbitration In The Kingdom Of Saudi} Arabia" (2014) 30(2) Arbitration International.

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It is important to note that the New York Convention does not define the meaning of public policy which opens the door for countries to apply it differently.409Accusations have been made that some countries intentionally narrow the scope of public policy in order for enforcement to take place, and other countries broaden the scope in order to protect their national interests.410

With consideration of Saudi Arabia and the scope of public policy, in this sense it is important to consider that public policy is a unique issue under Saudi law because Sharia law is considered part of public policy.411 However, there are two reasons why public policy cannot be specified in the Saudi courts, the first being that there are not enough published cases as only a few have been released, but this is enough to determine what public policy means in the country;412 _{secpmd, the principle of stare}

decisis is not recognised by the courts in Saudi Arabia, therefore, it is difficult to predict outcomes even in very similar cases.413 Importantly, the decision as to what constitutes public policy is not bound by precedents, therefore, the court is completely free to refuse an award if they feel it goes against Sharia or public policy, even where there is no consensus among the jurists.

To illustrate this issue,in case 3375/1, an award was refused for enforcement because the original judgment was based on singing and dancing and because these are forbidden according to the Quran and the teaching of the Prophet Mohammed (PBUH peace be upon him). However, although the court in this case acknowledge that there

409_{Ahmed Altawyan ‘Arbitral Awards Under the Saudi Laws: Challenges and Possible} Improvements ‘(April 2017) 3 (1). International Journal of Law and Interdisciplinary Legal Studies.

410 _Ibid 411 _Ibid 412 _Ibid

413_{S. Al-Ammari and A. Timothy Martin, "Arbitration In The Kingdom Of Saudi} Arabia" (2014) 30(2) Arbitration International.

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are differences in opinion between Islamic jurists about whether singing and music are not permitted, the court will not change its decision because it was based on faith.414

It is important to note at this point that what has been shown here is that according to Sharia principles, different decisions will be made based on the Quran and the teachings of the Prophet (PBUH) and there is even acknowledgement that there are different interpretations all of which are acceptable. Within Islamic law, there is no issue as to whether or not there is fairness in this case. Therefore, it is very important to note that it is not within the scope of this study to ascertain the fairness of the decisions to refuse awards based on the principles of Islamic law, but instead this study is interested in the fairness of refusing a decision on the grounds of public policy. In other words, the present study is concerned with whether decisions to refuse awards on the grounds of public policy are genuine refusals based on genuine public policy or Sharia concerns, or is public policy simply used to refuse awards for other motives that are not genuine?

However, Saudi Arabia, using Article V(2) (b) of the New York Convention to provide themselves with a safe harbour whereby they are allowed to refuse awards on the ground of public policy or Islamic principles, creates issues for foreign contractors and investors, despite the fact that the New York Convention is supposed to reassure foreign contractors that disputes will be adjudicated fairly.415

414_{Ahmed Altawyan ‘Arbitral Awards Under the Saudi Laws: Challenges and Possible} Improvements ‘(April 2017) 3 (1). International Journal of Law and Interdisciplinary Legal Studies.

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Unfortunately, the New York Convention makes it easier for Saudi Arabia to reject foreign arbitral awards and it could even be the case that it is not required to enforce any more awards since ratifying the New York Convention than they were before ratifying the Convention in 1994 (Roy, 1994, p. 953–955). Therefore, it could be considered that it is important for Saudi Arabia to address how it deals with the issue of public policy so that it may achieve the intended aims of the Convention.416 _Thus, it is important for Saudi Arabia to reconsider how it handles public policy in order to achieve the original intentions of the convention.417

In relation to fairness and justice, it has been recommended that if Saudi Arabia has a narrow reading of Article V (b), this would mean that the defences are effective when enforcing an award that does not violate the fundamental ideas of justice (Roy, 1994, p. 953–955). This may be in Saudi Arabia’s interests because it needs the confidence of the international commerce community.