Arbitration has been used to settle disputes in the Middle Eastsince time immemorial. It was used even prior to the establishment of the Islamic Judiciary in the history of Islam (Volokh, 2013). The Prophet Mohammed is recorded to have used arbitration to settle disputes. One significant application of arbitration used by the Prophet was acting as an arbitrator between the clans of Quraysh tribes. He successfully settled the dispute between the Quraysh tribes and hence prevented a potential war.
According to the Old Arbitration Law, arbitrators were expected to be people who were experienced and had full legal capacity. Arbitrators were supposed to be Saudi citizens and if not they had to have full knowledge of the laws and traditions of Saudi Arabia. Arbitrators also had to display good conduct and reputation. Presently, the dominant Islamic school in Saudi Arabia called the Hanbali School of Jurisprudence requires that arbitrators have similar qualifications as the Saudi Judges. This in few words means that arbitrators have to be male and Muslim. The issue of women being arbitrators is still a controversial subject. This is because arbitral awards issued by female arbitrators have a likelihood of not being enforced by the Saudi Courts. This is especially so in domestic arbitrators. However, this does not apply in international arbitrations (Lew, 2013).
Under the New Arbitration Law, arbitrators should have the following qualifications. First, they have to of good conduct. Secondly, they have full legal capacity and finally should be graduates with honours in Shari’ah or Law. All these requirements apply if a tribunal has only one arbitrator. For a tribunal with more than one arbitrator, only the chair should have all the requirements. The New Arbitration Law does not select arbitrators on the basis of their cultures like religion or nationality but are required arbitrators to be independent. It also requires them tocooperate to they sensibly handled any disputes. This should be stated in writing. Another difference between the Old Arbitration Law and the New Arbitration Law is that under the Old Arbitration Law, it is the courts which supervise on the appointment and replacement of the arbitrators in case the parties involves fail to come to a consensus. It also supervises on the conduct of the arbitration. However, under the New Arbitration Law, the courts do not interfere in the selection of the arbitrators. In case the parties fail to select an arbitration procedure, the law gives a comprehensive procedure for doing so. The tribunal can consist of more than one arbitrator, but the total number of the arbitrators must be an odd number.
The New Arbitration Law came into force in 8th July 2012. This new law is more clearer, comprehensive and “arbitration friendly” as compared to the previous law. It is quite similar and in conformity with the UNCITRAL Model Law on International Commercial Arbitration which has been adopted in over 65 jurisdictions in the world. Some of these “arbitration friendly” principles include the power of an arbitral tribunal to determine its own jurisdiction and autonomy. However, the Arbitration Law retains characteristics and features found in other Arbitration Laws in the GCC region. It also has features which are specific to the kingdom.
The New Arbitration Law is much flexible compared to the Od Arbitration Law.It covers disputes at all levels including the domestic and international commercial disputes, as compared to the latter which settles only domestic disputes. It has led to the improved execution of judgments hence appearing to be Arbifriendlier.
Lew, J. (Ed.). (2013). Contemporary problems in international arbitration. Springer Science & Business Media.
Volokh, E. (2013). Religious Law (Especially Islamic Law) in American Courts. Okla. L. Rev., 66, 431.