Alotaibi, Abdulkarim Saud (2019) The development of an arbitration system attractive to international commerce: analysing the new Saudi law of arbitration 1433H (2012). PhD thesis, University of Warwick.

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Abstract

The practice of International Commercial Arbitration (ICA) has undergone several developments in the legislative history of the Kingdom of Saudi Arabia (KSA) largely influenced by the surrounding political, economic and legal circumstance. This was evident in the welcoming approach to ICA at the time of its establishment, which later changed to a hostile approach following the Aramco case. This hostile attitude hindered the development of the KSA arbitration framework up until the 1970s when it realised the importance of ICA in creating a reliable formwork for international commerce. Since then, the KSA has gradually developed a cautious and welcoming approaching to ICA, while at the same time reserving its sovereign rights over local disputes.
This thesis critically assesses the development of the KSA arbitration regulation and the influence of both Sharia and the KSA culture in its development. In this regard, this thesis discusses the influence of the various Sharia sources on the KSA legal system and how such sources could be reconciled with current Islamic law theories. Such reconciliation will help remove issues evident in the KSA’s interpretation and application of Sharia principles. This is particularly necessary when ascertaining the limits of KSA public policy, which is primarily based on Sharia rules. The Islamic natural law theory and Maqasid Al Sharia theory provide an effective rationale for resolving issues arising under Islamic law. If such theories are well utilised by the KSA lawmakers, the issue of public policy and any other upcoming issues will be effectively resolved within the boundary of Sharia.
This thesis additionally discusses the 2012 Saudi Arbitration Regulation SAR and how it develops the earlier practice of ICA in the KSA. It draws comparisons, where relevant, with the UNICTRAL Model Law and other institutional and developed states’ rules in order to compare the new regulation’s provisions with those of internationally recognised standards. This is particularly important in light of the KSA’s aims in attracting international commerce, which requires a system of developed and reliable legal regulations capable of governing disputes. In this regard, this thesis examines the influence of the 2012 SAR on the KSA practice of ICA through the researcher’s collected interviews and enforcement cases. It also examines the influence of the 2013 Saudi Enforcement Regulation (SER) on the enforcement of both local and international awards. This regulation, alongside the 2012 SAR, governs the process of ICA from its start until its enforcement, requiring such processes to be of international standard in order to achieve the KSA goal of attracting foreign commerce.
This thesis concludes by acknowledging the development introduced by the 2012 SAR into the KSA arbitration framework. It also acknowledges the 2012 SAR’s failures to address some of the important issues inherited from the predecessor regulation. The author additionally recommends certain steps that should be taken by the KSA in order to develop the 2012 SAR and the 2013 SER. The contentious issues in the KSA’s interpretation of Sharia rules are also addressed and specific recommendations are put forward to help clarify these issues. Finally, the author believes that the KSA arbitration framework, as it currently stands, is much more attractive than any predecessor regulation, but it is nevertheless not attractive enough to draw foreign commerce. Therefore, this thesis puts forward several recommendations aimed at making the KSA’s arbitration framework more attractive to both local and foreign commerce. These recommendations include: embracing a hybrid view of ICA, clarifying the ambiguities present in the 2012 SAR, developing the consultative council’s role, codifying the general provisions of Sharia, refining the scope of the KSA’s public policy and reconsidering the scope of interest in the KSA’s legal practice. The implementation of these recommendations will create an appropriately attractive and reliable arbitration framework.

Item Type:	Thesis (PhD)
Subjects:	K Law [Moys] > KD Religious Systems
Library of Congress Subject Headings (LCSH):	Arbitration and award -- Saudi Arabia, International commercial arbitration -- Saudi Arabia, Arbitration and award (Islamic law), Conflict of laws -- Arbitration and award -- Saudi Arabia
Official Date:	April 2019
Dates:	Date Event April 2019 Submitted
Institution:	University of Warwick
Theses Department:	School of Law
Thesis Type:	PhD
Publication Status:	Unpublished
Supervisor(s)/Advisor:	Ali, Shaheen Sardar , O'Brian, William
Extent:	265 leaves : illustrations
Language:	eng

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