Environmental Engineering Reference
In-Depth Information
[L]ike most Western legal systems, the Shari
a is a positive system of law and not merely
religious law. Additionally, both systems apply judge-made law using the case law method
in their own particular ways.
554
'
2.6.2.2 Acceptance of Arbitration
an approves it.
555
Even the
Prophet Muhammad called for arbitration in a conflict with the tribe of
Banu
Qurayza
.
556
Yet, down to the present day, in many Islamic countries, women still
cannot be arbitrators.
557
One partial driving factor is globalization because self-isolation is not possible
anymore.
558
Nevertheless, in Middle Eastern countries, people have the feeling that
international arbitration does not consider Islamic culture, values and legal tradi-
tions.
559
It is also important to remember that Islamic countries share the same
language, but also have different cultural backgrounds.
560
They share a close
cultural connection through Islam.
561
The distrust of international arbitration is
also deeply rooted in the MENA region.
562
There is also evidence that Islamic legal
tradition accepts
tahkim
(arbitration).
563
While most Western scholars view arbi-
tration as binding, Islamic scholars are still discussing the extent to which
tahkim
is
binding.
564
The main problem is that the four important Islamic law schools
interpret
tahkim
differently.
565
Furthermore, the scope of
tahkim
is questionable.
566
For example, Turkey excluded state concessions for public services and invest-
ments from arbitration for a long time.
567
The parliament changed this in 2001,
Traditional Islamic law accepts arbitration and the Qur
'
554
Kutty (
2006
), 565 (579); Similarities of both systems, in: Ayad (
2009
), 93 (109).
555
Vogl (
2010
), 32 (33); Ahdab and Stackpool-Moore (
2008
), 275 (283); Brower and Sharpe
(
2003
), 643 (643); Kutty (
2006
), 565 (589-590).
556
Brower and Sharpe (
2003
), 643 (643); Darwazeh and El-Kosheri (
2008
), 203 (204).
557
Darwazeh and El-Kosheri (
2008
), 203 (204-205); Kutty (
2006
), 565 (606).
558
Brower and Sharpe (
2003
), 643 (646-647).
559
Sayed (
2008
), 289 (292); Brower and Sharpe (
2003
), 643 (645-646); Kutty (
2006
), 565 (592);
Historically reinforced by Western attitudes in oil concession contracts, in: Brower and Sharpe
(
2003
), 643 (644).
560
Hammoud and Houerbi (
2008
), 231 (231).
561
Darwazeh and El-Kosheri (
2008
), 203 (203).
562
Nariman (
2004
), 123 (123).
563
It will also expand in the upcoming years, in: Darwazeh and El-Kosheri (
2008
), 203 (209);
Ahdab and Stackpool-Moore (
2008
), 275 (283-284); Brower and Sharpe (
2003
), 643 (643); Kutty
(
2006
), 565 (596).
564
Darwazeh and El-Kosheri (
2008
), 203 (204); Kutty (
2006
), 565 (596-597).
565
Kutty (
2006
), 565 (597).
566
Prohibition of arbitration of state entities in some Islamic states, in: Brower and Sharpe (
2003
),
643 (651-652); Kutty (
2006
), 565 (598-601).
567
Brower and Sharpe (
2003
), 643 (652).
