The ex officio power of the arbitrator to raise new issues of law in Islamic finance disputes

Abstract

The legal nature of arbitration varies from the legal nature of litigation. While the judge derives his authority from the state power, the arbitrator derives his powers, in the first place, from the parties' agreement. The power of the court to raise new issues of law ex officio is widely recognized. When it comes to arbitration, the matter is more complicated. The ex officio power of the arbitrator to raise new issues of law is controversial in international commercial arbitration. The situation is even more complicated in contemporary Islamic finance disputes due to the nature of the applicable law to the merits of such disputes. Sharīʿa, which is the applicable law or a significant part thereof, obliges the arbitrator to apply the mandatory rules of Sharīʿa ex officio regardless of the parties' claims. Under Sharīʿa, the primacy is to its mandatory rules, contrary to international arbitration which grants the primacy to party autonomy. This sometimes results in a conflict between the rules of Sharīʿa and the rules of international arbitration. This paper examines to what extent the arbitrator may raise new issues of law ex officio in Islamic finance disputes. The paper argues that the arbitrator has a power, not a duty, to raise new issues of law ex officio in Islamic finance disputes; however, such a power is surrounded by considerable practical and legal challenges which may impede it. In doing so, the paper compares the scope of arbitrator's power between Islamic legal theory and international arbitration theory. It also examines and analyzes the available case studies which deal with the ex officio power of the arbitrator to raise new issues of law in Islamic finance disputes.

Department

Law Department

Degree Name

LLM in International and Comparative Law

Graduation Date

2-1-2019

Submission Date

9-9-2018

First Advisor

Sayed, Hani

Committee Member 1

Hussein, Dalia

Committee Member 2

Hegazy, Walid

Extent

64 p.

Document Type

Master's Thesis

Rights

The author retains all rights with regard to copyright. The author certifies that written permission from the owner(s) of third-party copyrighted matter included in the thesis, dissertation, paper, or record of study has been obtained. The author further certifies that IRB approval has been obtained for this thesis, or that IRB approval is not necessary for this thesis. Insofar as this thesis, dissertation, paper, or record of study is an educational record as defined in the Family Educational Rights and Privacy Act (FERPA) (20 USC 1232g), the author has granted consent to disclosure of it to anyone who requests a copy.

Institutional Review Board (IRB) Approval

Not necessary for this item

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