Shari′a Law in CommerCiaL and Banking arBitration To my parents Shari′a Law in Commercial and Banking Arbitration Law and Practice in Saudi Arabia aBduLrahman YahYa Baamir Jeddah, Saudi Arabia © Abdulrahman Yahya Baamir 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Abdulrahman Yahya Baamir has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Baamir, Abdulrahman Yahya. Shari′a law in commercial and banking arbitration : law and practice in Saudi Arabia. 1. Arbitration and award--Saudi Arabia. 2. Arbitration and award (Islamic law)--Saudi Arabia. 3. Banking law--Saudi Arabia. 4. Banking law (Islamic law)--Saudi Arabia. 5. Conflict of laws--Arbitration and award--Saudi Arabia. I. Title 346.5'38082-dc22 Library of Congress Cataloging-in-Publication Data Baamir, Abdulrahman Yahya. Shari′a law in commercial and banking arbitration : law and practice in Saudi Arabia / by Abdulrahman Yahya Baamir. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-0377-7 (hardback) -- ISBN 978-1-4094-0378-4 (ebook) 1. Arbitration and award--Saudi Arabia. 2. Arbitration and award (Islamic law). I. Title. KMT1829.B33 2010 347.538''09--dc22 2010014662 ISBN 9781409403777 (hbk) ISBN 9781409403784 (ebk) Contents List of Legislations, Treaties and Cases vii Acknowledgements xiii List of Abbreviations xv Introduction 1 1 An Introduction to the Law and Economics of Saudi Arabia 5 2 The Law and Practice of Arbitration in Arabia from the Pre-Islamic Era to the Emergence of the Four Schools of Jurisprudence 45 3 Arbitration in the Fully Developed Islamic Law 57 4 The Regulatory Attitude toward Arbitration in Saudi Arabia 95 5 Saudi Law as Lex Arbitri: Evaluation of Saudi Arbitration Law and Judicial Practice 117 6 Arbitration for the Settlement of Banking Disputes in Saudi Arabia 151 Bibliography 189 Index 205 This page has been left blank intentionally List of Legislations, Treaties and Cases Statutes and Conventions Domestic Regulations of Saudi Arabia Banking Control Law, ‘Qanoon Moraqabat Albonok’ issued by Royal Decree No. M/5 dated 22/02/1386 H. (1966) Foreign Investment Regulation, ‘Nizam Alistithmar Alajnabi’ issued by Royal Decree No. M/1 dated 05/01/1421 H. (2000) Foreign Investment Regulation, ‘Nizam Alistithmar Alajnabi’ issued by Royal Decree No. M/4 dated 02/02/1399 H. (1979) (cancelled) Mining Investment Law, ‘Nizam Al Isithmar Al Ta′deni’ issued by Royal Decree No. M/47 dated 20/08/1425 H. (2005) Oil Companies Law, ‘Nizam Alsharikat Al Amilah Fe Haql Alpetrol’ issued by Royal Decree No. M/1 dated 09/01/1389 H. (1968) The Arbitration Act of Saudi Arabia, ‘Nizam Altahkeem Alsaudi’ issued by Royal Decree No. M/46 dated 02/07/1403 H. (1983) The Basic Law of Saudi Arabia, ‘Alnizam Alasasi Lil Hokm’ issued by Royal Decree No. A/90 dated 27/08/1412 H. (1992) The Capital Market Law, ‘Nizam Alsouq Almaliyah’ issued by Royal Decree No. M/3, dated 31/07/2003) The Charter of the Saudi Arabian Monetary Agency ‘SAMA’, ‘Nizam Mossasat Alnaqd Alarabi Alsaudi’ issued by Royal Decree No. 23 dated 23/05/1377 H. (1957) The Code of Commercial Court, ‘Nizam Almahkamah Altijaiyah’ issued by Royal Decree No. 32 dated 15/01/1350 H. (1931) The Code of Law Practice, ‘Nizam Almohamah’ issued by Royal Decree No. M/38 dated 28/06/1422 H. (2001) The Company Law, ‘Nizam Alsharikat’ issued by Royal Decree No. M/6 dated 22/03/1385 H. (1965) The Competition Law of Saudi Arabia, ‘Nizam Almonafasah Altijariyah’ issued by Royal Decree No. M/25 dated 04/05/1425 H. (2005) The Implementing Rules of The Arbitration Act of Saudi Arabia, ‘Al la′iha Altanfeziyah Le Nizam Altahkeem Alsaudi’ issued by the Prime Minister Order No. M/7/2021 dated 08/09/1405 H. (1985) The Law of Commercial Mortgage, ‘Nizam Alrahn Altijari’ issued by Royal Decree No. M/75 dated 21/11/1424 H. (2004) viii Shari′a Law in Commercial and Banking Arbitration The Law of Commercial Papers, ‘Nizam Alawraq Altejariyah’ issued by Royal Decree No. 37 dated 11/10/1383 H. (1963) The Law of Copyright, ‘Nizam Hoqooq Almilkiyah Alfikriyah’ issued by Royal Decree No. M/41 dated 02/07/1424 H./30/08/2003 The Law of Diwan Almazalim, ‘Nizam Diwan Almazalim’ issued by Royal Decree No. M/78 dated 19/09/1428 H. (2007) The Law of Judiciary of 1975, ‘Nizam Alqada′ issued by Royal Decree No. M/64 dated 14/07/1395 H. (1975) (cancelled) The Law of Judiciary of 2007, ‘Nizam Alqada′ issued by Royal Decree No. M/78 dated 09/09/1428 H. (2007) The Law of Procedure before Shari′a Courts, ‘Nizam Almorafa′at Ashar’iyah’ issued by Royal Decree No. M/21 dated 20/05/1421 H. (2001) The Law of the Chambers of Commerce and Industry, ‘Nizam Algoraf Altijaiyah Alsina iyah’ issued by Royal Decree No. M/6 dated 30/04/1400 H. (1980) The Ownership of the Natural Resources of the Red Sea, ‘Nizam Tamallouk Tharwat Albahr Alahmar’ issued by Royal Decree No. M/27 dated 09/07/1388 H. (1968) The Regulation of the Committee for the Settlement of Banking Disputes, issued by Royal Order No. 8/729 dated 10/07/1407 H. (1987) Other Official Documents Diwan Almazalim’s Circular No. 7 of 15/05/1405 H. (1985) Royal Decree dated 23/10/1381(1962) Royal Decree dated 5/9/1344 H. (1926) Royal Decree No. (90/A) dated 28/06/1412 H. (1992) Royal Decree No. (M/21) dated 20/05/1421 H. (2001) Royal Decree No. (M/51) dated 1402 H. (1982) Royal Decree No. (M/6) dated 24/02/1386 H. (1966) Royal Decree No. (M/64) dated 1395 H. (1975) Royal Decree No. (M/78) dated 19/09/1428 H. (2007) Royal Decree No. (M/8) dated 22/02/1394 H. (1974) Royal Decree No. 165 dated 7/5/1423 H. (2002) Royal Decree No. 24836 dated 29/10/1386 H. (1967) Royal Decree No. 37 dated 11/10/1383 H. (1963) Royal Decree No. 5737 dated 9/04/1373 H. (1954) Royal Decree No. 8759 dated 13/02/1374 H. (1955) Royal Decree No. M/46, dated 12/07/1403 H. (1983) Royal Order No. 4/110 dated 1409 H. (1989) Royal Order No. 729/8 dated 10/07/1407 H. (1987) Royal Order No. 8/729 dated 1407 H. (1987) Saudi Arabian Monetary Agency Circular No. 333/BC/200 dated 22/08/1413 H. (1993) The Circular of the Minster of Interior No. 10207 dated 07/02/1407 H. (1987) List of Legislations, Treaties and Cases ix The Council of Ministers Resolution No. 50 dated 25/12/1379 H. (1960) The Council of Ministers Resolution No. 58 dated 1382 H. (1963) The Minister of Justice Circular No. 107/2/T dated 25/08/1389 H. (1969) The Ministry of Commerce Circular No. 31/1/331/91 of 1399 H. (1979) The Ministry of Finance Circular No. 17/5583 dated 19/09/1409 H. (1989) Bilateral Conventions Agreement between the Government of the Kingdom of Saudi Arabia and the Government of Malaysia concerning the promotion and reciprocal protection of investment signed in Kuala Lumpur on 10 October 2000 Agreement between the Kingdom of Saudi Arabia and the Belo Luxembourg economic union (bleu) concerning the reciprocal promotion and protection of investments signed in Jeddah on 22 April 2001 Agreement between the Kingdom of Saudi Arabia and the Republic of Austria concerning the Encouragement and Reciprocal Protection of Investment signed in Riyadh on 30 June 2000 The Concession Agreement between the Government of Saudi Arabia and Standard Oil of California ‘Aramco Concession’, Jeddah, 29 May 1933 The Concession Agreement between the Government of Saudi Arabia and Lukoil Saudi Arabia Ltd, Riyadh, 4 May 2005 Non-Saudi Regulations The Bid Regulation of 1957, Egypt Arbitration Act 1996 (c. 23), UK The Civil Code of 1949, Egypt The Constitution of Kuwait of 1962, Kuwait The Constitution of Yemen of 1994, Yemen The Egyptian Constitution s; the 1980 amendment, Egypt The Federal Constitution of the United Arab Emirates of 1971, United Arab Emirates The UAE Federal No. 18 of 1993, ‘Commercial Transactions Law’, United Arab Emirates The UAE Civil Procedure Code, Federal Law No. (11) of 1992, United Arab Emirates International Conventions Convention on the Settlement of Investment Disputes between States and Nationals of other States, ‘ICSID Convention’. The International Centre for Settlement of Investment Disputes, 14 October 1966 Rules of Arbitration of the International Chamber of Commerce, ‘ICC Rules’. The International Chamber of Commerce, 1 January 1998