The Reemergence of Commercial Arbitration - Research Proposal Example

The Reemergence of Commercial Arbitration: A Comparative Analysis of the Legal Regimes in the European Commission and the State of Kuwait Ph.D. Dissertation Proposal 2009 I. Introduction International commercial arbitration is the process of resolving business disputes between or among trans-national parties through the use of one or more arbitrators rather than through the courts.  It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding.  Unlike a judicial process, arbitration is conducted outside the court system by impartial arbitrators who are selected by the parties based on criteria that best fits the nature of the contract (Wallace:2005; Babu:2006). Arbitration is usually conducted by either one arbitrator or a panel of three arbitrators with the structure, format, site and scope of arbitration all decided by the parties and memorialized in the arbitration clause of their contract. The parties usually negotiate the arbitration clause at the same time they develop the initial contract. A properly structured provision will help establish a framework for expeditious resolution of contract disputes (Barry: 2005). Arbitration starts by the arbitration agreement. Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The arbitration agreement is usually put writing. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract1. Arbitration is governed according to the rules of a neutral arbitration organization that has often been selected by means of this clause inserted into the international agreement or trans-national contract. The arbitration is administered by a panel of arbitrators who are agreed upon by both parties. In addition, the confidentiality of the arbitration process is attractive to those who do not wish the terms of a settlement to those who are not parties to the transaction or to the contract. II. History of Arbitration The United Nations (UN) Commission on International Trade Laws first adopted on 21 June 1985, the model law on international commercial arbitration which is designed to assist States in reforming and modernizing their laws on arbitral procedure in consideration of the peculiar characteristics and requirements of international commercial arbitration. The UNCITRAL governs every phase of the arbitral process from the arbitration agreement, to the composition and jurisdiction of the arbitral tribunal and the extent of court intervention, up to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practices having been accepted by States of all regions and the different legal or economic systems of the world. The principal rationale underlying the law is the aspiration of the international arena to enhance trade through uniformity, predictability and stability of commercial transactions and speedy resolution of disputes involving the same. This is envisioned to result in faster growth, higher living standards, and new opportunities for all through commerce. With the end in mind of enhancing these opportunities worldwide, UNCITRAL formulated modern, fair, and harmonized rules on commercial transactions. Among these are: Conventions, model laws and rules which are acceptable worldwide Legal and legislative guides and recommendations of great practical value Updated information on case law and enactments of uniform commercial law Technical assistance in law reform projects Regional and national seminars on uniform commercial law III. Statement of the Preliminary Research Problem This proposed PhD will focus on a comparative analysis of the nature, dynamics and regulations enshrined in the EC international arbitration regulations and the Kuwaiti commercial arbitration all within the context of international law. As such, the research problem that this proposed dissertation intends to discuss and analyze is this: What are the similarities and differences between the Commercial Arbitration regime in the European Commission (EC) and the Commercial Arbitration regime in the State of Kuwait? The general objective of this proposed dissertation is to identify the general areas of similarity or commonality between commercial arbitration in the EC and the commercial arbitration regime in the State of Kuwait through a comparative analysis of the laws, customs and practices in these two different jurisdictions. The specific objectives of this proposed dissertation are: (a) To research, present and discuss the laws, customs, usages and practices on commercial arbitration currently in force in the EC and its interface with international commercial arbitration; (b) To research, present and discuss the laws, customs, usages and practices on commercial arbitration currently in force in the State of Kuwait and its interface with international commercial arbitration; (c) To pinpoint at the main obstacles both cross-national trade disputes and the specific ones hindering the implementation of commercial arbitration in Kuwait.. (d) To evolve a possible alternative framework on how to implement the commercial arbitration policy in line with the Kuwaiti law. IV. Statement of the Hypothesis/ Proposed Dissertation (Originality of the Research) The distinctive nature of the research is to explore through a comparative methodological approach of the (EC commercial arbitration law) in the existing literature on the international commercial arbitration and the Kuwaiti law of international investment, regulations and enforcement. The Kuwaiti legal system which is basically an Islamic law is by nature different from the western arbitration law. Thus, the aim of the research is to constructively develop an analytical framework through a comparative study on both laws in order to contribute to the general body of knowledge. The hypothesis of this proposed dissertation is this: That, in terms of general principles, there is no disagreement between the EC arbitration system and the Islamic law of the State of Kuwait. In other words, this proposed dissertation will argue that the concepts and principles of commercial arbitration are found in Islamic law. The necessary implication of such a proposed dissertation is that there is no fundamental disagreement between the international commercial arbitration system as espoused by the European Commission and the concepts and principles of commercial arbitration as may be found in the sources of Islamic law in the State of Kuwait. However, as a corollary proposition, this research paper will explore the differences and gaps between the international commercial arbitration system of the EC and the existing commercial arbitration in the State of Kuwait. This can be done by studying, analyzing and assessing the various laws, customs, usages and practices of commercial arbitration in the two separate and different jurisdictions. In other words, this proposed dissertation expects to explore the application of specific rules of international commercial arbitration by consolidating these rules, customs and usages with the concepts and principles found in Islamic law. This proposed dissertation expects to contribute to the general body of knowledge in theoretical terms, first, by contributing to the theory that there is no fundamental disagreement between international commercial arbitration and arbitration in the State of Kuwait; secondly, by contributing to the operational requirements in the State of Kuwait for more specific and comprehensive rules on commercial arbitration consistent with the consensus of many states as contained in the UNCITRAL. V. A Preliminary Assessment: the EC and the State of Kuwait The European Union is unique in the way it is constructed. It has a set of internal laws that has profound impact on the legal system of its member states. There are three types of Union law: The first is the primary legislations which are treaties that are signed in most cases by all member states. There are also secondary legislations and these are composed of regulations, directives, decisions and recommendations that are determined by the Union following the treaties. There are also the decisions which member of states must abide by and these from the European court of justice and the court of first instance. The treaties of the European Union could be considered as the constitutional law of the Union. These treaties lay down the institutional structure, legislative procedures, and the powers of the Union. Any annexes or protocols that are linked with the treaties are also a source of primary legislation (Foster: 2001, Craig and De, Burca: 1998, Beatson and Tridimas: 1998). However, within the context of the EC and international law, the role of the EC competition law in international arbitration is very important (McAllister: 1997). However, the role of competition law in international arbitration deployed by the EC has been controversial for a while, yet the controversy gradually seems to be settling in favour of the international arbitrator’s application of competition law of his own motion. Whereas in light of the traditional approach to arbitration, this development arguably seems surprising, the forces of globalisation would not allow otherwise. Arbitration is thus viewed more and more as a factor of peaceful development of international trade. States, far from showing a lack of interest in arbitral proceedings having a seat in their territory, maintain a measure of control as regards the respect of such fundamental principles as the arbitrator’s impartiality, due process and conformity of the award with their public policy, sanctioning their violation by the annulment of the award or refusal of its recognition and enforcement. This controversy stem largely from the earlier conceptualization of the the relationship between international law and international politics where states are strategically concern with the development of international legal framework that suits their interests (Dixon and McCorquodale: Ibid: 5, Wallace: 2005:315). The Kuwait Arbitration Law The fact of the matter is that there is a growing commercial interaction between the western and Middle Eastern business communities. It is also true that the there is a strong opposition to the international arbitration movement as a Western import under the doctrine of Islamic legal system. However, this study will focus on exploring at the potential need of reforming the Islamic commercial arbitration system to deal with contemporary international norms, transitions, and institutions governing transnational trade. Under the Islamic law the four Islamic sources of Sharia: the Koran, the Sunna, Idjma, and Qiyas (al-tahkim) and the four Islamic Schools: Maliki, Hanbali, Hanafi, and Shafi have fully recognized Arbitration as a form of conciliation (Alqurashi, 2004) but, differs with the contemporary international arbitration regulations regarding applicability and enforcement in some specific issues. Arbitration in Islam must be strong in confronting the changes that occur in the modern world (Hammudah, 1997). Abu Alwafa, (1984) stated that there are two types of arbitrations: one is voluntary and the other is compulsory. In addition, Abu Alwafa, (1999) states that the Sharia law in Islam uses Arbitration because it is meant to be a peaceful technique to settle dispute not only at small community levels but also international levels. Al Borgani (1994) argues that in Sharia Shura is Arbitration and arbitration is Shura in the sense that both lead to settling disputes among people and nations. Arbitration penetrates into many acts of human activities such as jurisprudence, insurance transactions, and daily commercial and social life (Al Ghazali, 1996, Al Hugail, 1987, Al Hugbani, 2002, Al qurtobi, 1996, Al Mulla, 1998, Al Mulla, 2001). During the past two decades, the developed nations have witnessed unprecedented changes in economics, investment, and international trade with multinational corporations operating overseas, dominating the global trade, and free-market capitalism being the new idol having proven massive success. On the other hand, the developing nations have taken similar steps in terms of improving their economies and attracting foreign direct investment (FDI) through the adoption of market economic policies, and further openness to the outer world. However, this has compounded the problem of economic inequality and marginalization of the developing economies. Hence, the reluctance by the Multi-national Corporations to settle potential disputes in accordance with national statutes, of host countries has made arbitration the plausible alternative for most of the developing world. Therefore, a large number of nations have adopted arbitration, while acceding to international agreements for instance the New-York agreement in 1958, recognizing foreign arbitration awards. . However, the Kuwaiti legislature was no exception amid such developments, through the Kuwaiti judicial system failed to keep pace in regard to dispute settlement, as the unsettled issues remained a major barrier to the desired economic improvement. Hence, it is possible that the Kuwaiti legislator soon realized the dire need to rectify deficiencies, with the (Issuance of law 24, 1994) on arbitration issues. The present study’s aims and objectives is thus to examine European International law and the Arab and Islamic attempts in this regard, indicating the early adoption of arbitration prior to Islamic reign. To achieve such a modern arbitration in light of a phenomenal growth in commercial disputes transcending at all levels of national boarders due to increasingly interrelated and globalised world economy. As such, there is a need to develop a strong Kuwaiti commercial arbitration system in which business community has confidence to come up with an evolution of arbitration dispute resolution system in Kuwait and find out the barriers and influencing factors of such an evolution under the Shari’a laws. VI. Research Methods The nature of this research requires a mixed method (Creswell, 2003) which utilizes existing chronological documents to delineate various arbitration systems, and semi-structured interviews and surveys in order to collect rich and reliable data. In the social sciences, the purpose of triangulation is by examining the collected data with the aid of different theories, methods, data sources and/or investigators to enhance the precision of the representation of the same findings (Bryman, 1988; Denzin, 1978). The number of interviews (20 interviews) would be conducted on this research is broadly consistent with the prevailing trend among qualitative interview studies (Kavale, 1996). The semi-structured interview questions and probes will be formed from the data brought forward from the themes that emerged from the existing chronological documents relative to arbitration application both in Islam and the Western world. The researcher will pilot the questions to reach an understanding that the interview questions and probes meet the objectives and aims of this research. All interviews will be tape-recorded in Arabic. Each interview will approximately last for one hour. Transcription of interviews starts soon after each interview. To save time and effort, the researcher will translate the interviews while transcribing from Arabic to English. Then specialists in the field of transcribing and translation would be asked to verify a couple of samples of transcriptions. As for the questionnaire, it will be formed from the themes that emerged from the literature review relevant to modern commercial and international trade arbitration also parallel to the themes inducted from the interview questions and probes answers. Thus, the methodology involved will include the use of both primary and secondary sources of data. VII. Review of Related Literature There is a growing amount of scholarly literature, which argues that there is immense need develop a commercial arbitration framework and set of rules in the Middle East to coincide with the consensus of the international legal community, which so far could not be satisfied by Islamic law or Shari’a standing alone. Some scholars argue that there is an existing tension between international commercial arbitration and the Shari’a. Thus, there is a call for a possible dialogue between the international and the Islamic arbitrations to create a fruitful consistency which serves both regimes (Kuttty, 2006). Janićijević (2005) argues that one way of solving this dispute is to delocalize the international arbitration regime through detaching it from: the procedural rules of the place of arbitration, the procedural rules of any specific national law, the substantive law of the place of arbitration, the national substantive law of any specific jurisdiction. AlHajeri (2000) argues that because of the commercial status of Kuwait, a total overhaul in arbitral regulation is needed, pointing out further that this is buttressed by the present policy thrust of Kuwait towards increasing levels of privatization and adopting other features of a free market economy. Al Hajeri criticizes the present set-up wherein rules governing arbitration are scattered throughout the various laws and ministerial resolutions instead of being consolidated in one law. The empirical argument of AlHajeri is that it is advisable to adopt the UNCITRAL Model Law because a couple of Arab countries have adopted this model successfully. Thus there have been many adoptions of foreign legislatives to modernize their arbitral systems and attract foreign investors in an attempt to boost their economy by joining international conventions. AlHajeri (2000) citing EL-Ahdeb (1990:366) stated that if arbitration is carried out to perform out of Kuwait only then it is considered foreign otherwise it would be pure Kuwaiti law when performed within Kuwaiti boarders thus there will be no distinction between national and international arbitrations. This call for adoption was echoed and supported by Al-Baharna (1994:154) by stating: “There is, though, a growing realisation in the Gulf countries that the arbitration provisions in the civil and commercial procedure codes should be adapted to the exigencies of international commercial arbitration. Similarly, there is an awareness of the usefulness of the ratification of, or accession to, the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards.” He further commented that: “This approach appears to us to be too radical in as much as it endows the Model Law with a normative value superior to the local laws of arbitration. Whether National States would modify their arbitration laws in the light of the Model Law, and whether national courts would decline to exercise jurisdiction on the basis of the Model Law is problematic. So long as judicial supervision over arbitration remains the cornerstone of national laws, it is implausible to expect that the Model Law would gain general acceptance. If the international community of States, on the other hand, is willing to limit the supervisory role of national courts in international commercial arbitration on the lines of the Model Law, the best thing would be to adopt an International Convention on International Commercial Arbitration” (pp.156-7). While Saleh (1985) has pointed out that Arabs consider arbitration as concession to the foreign law and the domestic arbitration will deprive their rights to be heard. He further states: “…the Arab States themselves must pave the way for the adoption of international arbitration on their territories. In order to do this, they should show legal maturity and recognise that international arbitration enjoys some measure of autonomy. On the human plane, arbitrators should ensure that they do not allow their dissensions and personal views to obtrude into a field where neutrality and detachment are the rule. Set against problems of this caliber, the content of legislative texts is often of secondary importance” (pp. 204). Babu, (2006:399) states that advantages of the arbitration over the courts do not exist at a practical level in the developing world but if they wish to make international commercial arbitration work they should take steps to educate their business communities on the essential pitfalls in the international commercial arbitration. Also as he advises every effort has to be made to setup and promote regional arbitration. Born and Miles (undated, please see bibliography) contest that there are both advantages and disadvantages to the lack of appellate review mechanisms of international arbitration. Provision with appellate review obviously reduces both litigation costs and delays. Also it is eccentric, or simply wrong, arbitral decision that cannot be corrected because business users generally consider the efficiency and finality of arbitral procedures favorably, even at the expense of foregoing appellate rights. The body of knowledge in the literature review shows that the developing countries are reluctant to implement the international arbitration. The aim of this research thus is to establish an evolution of commercial arbitration as alternative dispute resolution system in Kuwait under the Islamic Shari’a laws. To achieve this main aim there will be a need to pinpoint the main barriers to the implementation of such an evolution and to find out the influencing factors of such an evolution. This will pave the way to develop an evolution of commercial arbitration as alternative dispute resolution system in Kuwait under the Islamic Shari’a laws. VIII. Bibliography 1. Al-Alfi, M., (1995), ‘Arbitration in Islamic Jurisprudence', paper presented to the ninth session of the Islamic Jurisprudence Assembly, 1-6 April 1995, Abu Dhabi, UAE; 2. Al-Ambari, M. (2001), “Electronic Arbitration”, Conference on the Modern Direction of Arbitration in Arabic Doctrines, Damascus, (in Arabic); 3. Abdullatif, H. (1997), Islam in Focus, London and Cairo, Falah for Transulation, Publishing & Distribution; 4. Abu Alwafa, A. (1983), Voluntary and Compulsory Arbitration, Alexandria, Munsha Al-Maarif; 5. Abu-Alwafa, A. (1999), Arbitration as a Means of International Dispute Settlement in Sharia Law, Riyadh, The Institute of the Diplomatic Studies, Ed 6th, (in Arabic); 6. Al Borgani, M. (1994), Arbitration in Sharia, 31st Ed, Madinah, Dar Aleaman press, (in Arabic); 7. Al- Fadhul, M. (1995), The General Rules of Obligations, Vol. 1, 3rd Ed, Amman, Dar Althakafah for Publication and Distribution, (in Arabic); 8. Al Ghazali, A. (1996), Arbitration in Jurisprudence, Riyadh, University of Imam Mohammed Bin Saud, (in Arabic); 9. Al Hugail, O. (1987), Insurance Transactions in Islamic Jurisprudence, 1st Ed, Riyadh, Al Farazdag Printing Press; 10. Al Hugbani, F. (2002), The General and Modern Rules of the Saudi Commercial Arbitration, The Fourth Conference of the Arabic Arbitration Union, Sana’a, 14-15 September 2002; 11. Al Kasani, (1956), Badai Alsanai, Vol. VII, Cairo, Al Istiqamah Press; 12. Al Mulla, H. (1998), Arbitration Centre of Insurance Disputes in Saudi Arabia, GCC Commercial Arbitration Bulletin, No. 8, April 1998; 13. Al Mulla, H. (2001), The Essential Characteristics of the Arbitration System in Saudi Arabia, The Conference on the Modern Direction of the Arbitration in the Arab Statutes, 28-30 August 2001, Damascus, Syria, ( in Arabic); 14. Al qurtobi, Bin Rushid, (1996), Aljamee Le Ahkam Al Quran, Tafseer Alqurtobi, Vol. 5, 6, Cairo, Dar Alhadith, 1996; 15. Al-Baharna, H. 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(Undated) ‘Global Trends in International Arbitration’ Outside Perspectives, Special Advertising Section at Wilmer Cutler Pickering Hale and Dorr LLP.http://www.wilmerhale.com/files/Publication/3eadc21b-4cad-4ea8-bf29-012226df50b5/Presentation/PublicationAttachment/bb9cd3fd-f046-4489-b2a9-086a72f6d24d/GlobalTrends_InternationalArbitration.pdf. ( at June 21st 2008); 27. Bryman, A. (1988), Quantity and Quality in Social Research, London, Routledge; 28. Barry, S. “International Arbitration: Where and Under What System? Outline of a Presentation to the AIDV International Wine Law” Conference: October 2005 Annual Meeting Mornington Peninsula, Australia; 29. Chalmers, D and Szyszczak, E (1998) European Union Law: Volume II: Ashgate Dartmouth; 30. Creswell, J. (2003), Research design: qualitative, quantitative and mixed methods approaches. Thousand Oaks: Sage; 31. Craig, P. and De, Burca, G. (1998) EU Law: Text, Cases, and Materials; 2nd edition: Oxford University Press; 32. Denzin, N. (1978), The Research Act. A Theoretical Introduction to Sociological Methods (2nd ed), New York, McGraw-Hill; 33. Dinan, D (2000) Encyclopedia of the European Union: Lynner Rienner; London; 34. Dixon, M. (2005) International Law: Oxford University: 5th edition; 35. Dixon, M and McCorquodale, R. (1991) Cases and Materials on International Law:Oxford University Press; 36. El-Ahdab, A. (1990), Arbitration with the Arab Countries. Kluwer Law & Taxation Publishers. Deventer; 37. Foster, N. (2001), EC Legislation: 2006-2007; Oxford University Press; 17th edition; 38. International Commercial Arbitration Law : www.llrx.com/features/intarbitration.htm accessed 07/10/08; 39. International Court of Justice at www.un.org/law/ accessed 09/10/08; 40. Janićijević, D. (2005), Delocalization in International Commercial Arbitration, FACTA UNIVERSITATIS Series: Law and Politics Vol. 3, No1, 2005, pp. 63 – 71; 41. Kutty, F. (2006), The Shari’a Factor in International Commercial Arbitration, Loy. L.A. Int’l & Comp. L. Rev. (Vol. 28, pp565-624); 42. McAllister, R (1997) From EC to EU: An Historical and Political Survey: Routledge; London; 43. Miles, M.. & Huberman, M. (1994), Qualitative Data Analysis, Second Edition; 44. Kavale, S. (1996), Interviews: An introduction to qualitative research interviewing. Thousand Oaks, CA: Sage; 45. Phinnemore, D. and Church, C (1994) European Union and European Community: A Handbook and Commentary on the Post-Maastricht Treaties: Harvester &VWheatsheaf: London; 46. Phinnemore, D. and Church, C (2006) Understanding the European Constitution: introduction to the EU Constitutional Treaty: Routledge: London; 47. Shaw, M.N (1997) International Law: 4th edition ;Cambridge University Press; 48. Saleh, S., (1985), ‘The Settlement of Disputes in the Arab World Arbitration and Other Methods-Trends in Legislation and Case Law’, Arab Law Quarterly, Vol. 1, NO.2, pp. 198-204; 49. Wallace, M. R (2005) International Law: 5th edition: Published by Thomson: Sweet & Maxwell; IX. Appendix Appendix A. Research timeline Chapters Action Chapter one 2 t0 3 months 7,000 words Introduction and a critical evaluation of literature on commercial arbitration in EC, International law and Kuwait Chapter two from 3 to 4 months 10,000 words The historical evolution of commercial arbitration in EC, International law and Kuwait. Chapter three from 4 to 5 months 15,000 words The relevant aspects of the current legal system of commercial arbitration in EC, International law and Kuwait Chapter four from 3 to 4 months 10,000 words A critical evaluation of commercial arbitration as an alternative dispute resolution system in EC, International law and Kuwait in the light of specific criteria. Chapter five from 3 to 4 months 10,000 words Influences on Kuwaiti arbitration system from EC and International law and Kuwait’s internal traditions Chapter six from 3 to 4 months 10,000 words The enforceability of arbitral awards in EC, International law and Kuwait Chapter seven from 2 to 3 months 10,000 words Kuwait as a case study: A sector-by sector evaluation of utilization of arbitration as alternative dispute resolution system in Kuwait Chapter eight from 3 to4 months 10,000 words Changes and improvements needed in the arbitration system in EC, International law and Kuwait Chapter nine from 15 days 3, 000 words Conclusion Appendix B. Itemized List of Research Tasks Chapter Theme One Introduction and a critical evaluation of literature on commercial arbitration in EC, International law and Kuwait Two The historical evolution of commercial arbitration in EC, International law and Kuwait. Three The relevant aspects of the current legal system of commercial arbitration in EC, International law and Kuwait Four A critical evaluation of commercial arbitration as an alternative dispute resolution system in EC, International law and Kuwait in the light of specific criteria. Five Influences on Kuwaiti arbitration system from EC and International law and Kuwait’s internal traditions Six The enforceability of arbitral awards in EC, International law and Kuwait Seven Kuwait as a case study: A sector-by sector evaluation of utilization of arbitration as alternative dispute resolution system in Kuwait Eight Changes and improvements needed in the arbitration system in EC, International law and Kuwait Nine : Conclusion Read More