Qualifications of arbitrator 1 Essay Example | Topics and Well Written Essays - 5000 words

Qualifications of arbitrator 1 - Essay Example But the case may be different in the laws of other countries. The English Arbitration Act 1996 (EAA 1996) is distinctive from most other national arbitration laws, say, in comparison with its predecessor, the former Act 1950. The law does not provide for any general qualifications for an arbitrator. In Saudi Arabia, there is a quite detailed set of qualifications for the arbitrator taking into consideration the elements of the Saudi Arbitration Law 2012 (SAL 2012) and also the Islamic Sharia (Sharia). Under Sharia, the scholars’ views may vary due to the absence of such provision either in Quran or Sunnah (the two main sources of Sharia). Whilst it is seen by some scholars that it is necessary for strict requirements to be stipulated for whom is selected as an arbitrator, all of these requirements are not mandatory according to the view of some contemporary scholars. The essential aim for this section is to analyse and discuss two aspects. First, the qualifications of arbitrat or stipulated by law. Second, the freedom of parties to determine additional qualifications. This will be carried out in the context of the EAA 1996, Sharia, and the SAL 2012. 1. Qualifications of Arbitrator as Stipulated by Law The English Arbitration Act 1996, like many Western arbitration laws, provides a high degree of freedom for arbitration parties3. This is the case as long as the impartiality of the arbitrator is established. Under this Act, the only restriction is if the chosen arbitrator is a judge of the Commercial Court or Technology and Construction Court of England and Wales. In this instance, an additional approval from the Lord Chief Justice is required.4 The prescribed qualifications, hence, are simple and straightforward, which is markedly different from Sharia or the SAL 2012. Sharia prescribes several qualifications that should be met in the chosen arbitrator. This provides for a system that are bound to have different interpretations. Scholars, for instance, hav e different opinions regarding the qualifications that should be met in an arbitrator based on whether the requirements of an arbitrator are those for the judge or not. Most scholars of the four schools (Maliki, Shafi', Hanafi and Hanbali) see that the qualifications for the arbitrator are those required for a judge.5 This view is dominant on account of the fact that the arbitrator carries out the same function as that of a judge, which includes hearing the litigants and issuing the Judgement. 6 78 In the Kingdom of Saudi Arabia, due to the dominance of Sharia on its laws as it is the constitution of the Kingdom,9 many writers believe that the Saudi courts require the arbitrator to meet the qualifications of a judge as it is the view of the majority doctrine in Sharia.10 This is in addition to the qualifications stated by the SAL 2012.11 On the other hand, some scholars as Ibn Taimiyah12 and Ibn Hazm Aldhaheri 13 maintain the position that the qualifications of a judge are not neces sarily required for an arbitrator. Therefore, they believe any Muslim can be an arbitrator. The differences, hence, becomes problematic especially in the event of a challenge to an arbitration decision or its implementation. The Sharia law in this paper will refer to the Saudi Law for purposes of clarification. As what has