SHARIAH AND THE INTERNATIONAL TREATIES ON COMMERCIAL DISPUTE SETTLEMENTS: AN APPRAISAL

Abstract

The International treaties on commercial dispute resolution have been very helpful to adjudicating complex commercial disputes with international elements. This paper aims to highlight some critical issues of the International Commercial Conventions and treaties on settlement of disputes related to commercial transactions in developing economies. The ratification of those conventions was not an easy task due to various concerns related to sovereignty and national interests of the participating nations. This paper looks into the popular New York Convention and CISD and their ratifications by developing countries, especially those that regarded Shariah as their primary source of law. A library-based research method has been used to obtain information from books, journal articles, and published and unpublished papers and analyze them accordingly. The paper highlights the fact that Shariah has no objection in accepting or ratifying a treaty, which is meant for the wellbeing of the society. This is however, should not contradict with the general principles of Shariah law. The findings reveal that despite the ratification of the above-mentioned conventions by developing nations, issues related to countries national laws and sovereignty are still not addressed in practical terms. The refusal of the arbitration penal in the case of Kingdom of Saudi Arabia V. Aramco Oil Company and its denial to accepting the Shariah law as the Governing law despite been stipulated, has raised many concerns of the perfection of international dispute settlement mechanisms involving Shariah law. Furthermore, the experience was similar in the case of Shamil Bank of Bahrain EC v Beximco Phamaceticals Ltd, where the Shariah law was sidelined even though it was the initial governing law of the contract.