DO CULTURE AND RELIGION AFFECT AWARD ENFORCEMENT IN INTERNATIONAL COMMERCIAL ARBITRATION?
Arbitration is one of the earliest legal conflict resolution procedures. Arbitration has evolved into a more intricate system of resolving international conflicts in recent times. However, various conventions, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, aided in the enforcement of tribunal awards. Many Islamic countries have increasingly realised the importance of adhering to modern international commercial norms and enacting legislation in accordance with evolved international trade laws. However, changing these rules and values has become increasingly difficult because they are deeply rooted in the region’s religion and culture.
Despite its benefits, arbitration can be more expensive and time consuming than national court proceedings. Many conflicts, such as those involving financial crimes, cannot be settled only by arbitration. While Islam, the Middle East’s main religion, has generally tolerated business practises, it has also imposed restrictive restrictions about commerce. Many Islamic countries have increasingly realised the importance of adhering to modern international commercial norms and enacting legislation in accordance with evolved international trade laws. Arbitration appears to be one of the finest, if not the best, choices for resolving economic disputes in Islamic countries.
Most Islamic countries have quite varied rules regarding international trade and commercial arbitration. Many of these countries rely on the New York Convention, which provides that if an international arbitration ruling violates public policy, a national court may refuse to enforce it. For Western lawyers, arbitrators, and practitioners, this causes uncertainty and misunderstanding. In less than half of the cases involving Arab parties, an Arab arbitrator served on the arbitration bench. This negative attitude toward Islamic culture has a negative impact on both the arbitration procedure and the perspectives of parties and lawyers. It is feasible, however, to argue that Arab countries have an obligation to provide Shari’a advice and guidance to Western scholars and practitioners.
Western countries who want to maintain trade links with Arab countries must first learn more about Islam and Shari’a law. This can be accomplished by improving education in international arbitration among Islamic countries. Another feasible alternative is to establish an independent Islamic institute for the adoption and development of regional-international rules. “Oh, East is East, and West is West, and never the twain shall meet, till Earth and Sky stand presently at God’s Great Judgment Seat,” wrote Rudyard Kipling. The debate over international economic arbitration between the West and the East will continue until progress is made.
Cultural differences have been a major source of contention in relations between the West and the Middle Eastern Islamic countries. The notion of culture and the significance of religion in Iranian culture are discussed in Chapter 3. After that, in order to understand Islam, we briefly examine the history and sources of Shari a, as well as its various schools, and conclude that, in order to understand the effect of culture on the enforcement of international arbitration awards in Iran, it is necessary to study arbitration under Iranian applicable laws and Islamic rules separately, as discussed in chapters four and five. The fourth chapter investigates international arbitration doors Two explanations for this phenomena have been proposed in the literature; western nations believe that Arab countries have rudimentary laws and lack advanced knowledge of arbitration. Arab countries, on the other hand, claim that one of the reasons for their aversion to arbitration is because Western countries are biassed towards Arab lawyers, arbitrators, and even Islamic rules. Unfortunately, there is little information and few statistics available to analyse the impact of culture on arbitration interactions. More study and investigation are needed before a conclusive analysis can be established.
Arbitration culture is rapidly growing in many Islamic countries today, which helps international Islamic arbitration centres improve their process by hiring certified arbitrators, encouraging parties to refer to arbitration, providing information about the process, and assisting in the formulation of uniform laws. 198 This expansion is also a result of economic advancements in several Islamic countries. Islamic banks have recently grown at an annual pace of 5 to 15% due to the expansion of international trade and the importance of oil. As a result, many Arabic countries have recently closed their doors to international arbitration. Several researchers who investigate arbitration problems in Islamic nations will initially ascribe the root of these problems to the Islamic countries’ public policy A closer examination reveals another impediment: the behaviour and attitude of Western arbitrators and scholars has created a sense of bias and suspicion. The neutrality of the arbitration system ensures a more fair and just conclusion, which is one of the main reasons parties select arbitration over a national court. 212 However, in order to achieve a fair and just outcome, “the parties must also believe that they have been heard and understood in their cultural context.” It is critical to understand how culture influences people’s behaviour and knowledge in each place.
Many dictionaries and literature define culture; Webster’s dictionary defines culture as “the integrated pattern of human knowledge, belief, and behaviour that is dependent on the ability for learning and imparting information to subsequent generations.” Culture, like the captain of a ship, guides or controls a society’s behaviour, thought, and essential beliefs. Religion, as previously said, plays a vital part in Arab countries. For millennia, Sharia has shaped the culture of people in the Middle East. It is critical for a practitioner who wants to work with Arab countries in the region to understand the people’s history and culture. However, it is debatable if some practitioners, arbitrators, and lawyers, knowingly or unconsciously, violate the law.
Try not to learn anything about Islamic culture. This is known as ethnocentricity, which is defined as “the inclination to favour what is familiar and predictable and to see one’s cultural standards as accurate and natural, and so superior to those that deviate.” To ensure and foster appropriate communication, one should set aside the Western pattern of thought or belief and try to understand other people’s cultures. Furthermore, analysing the problems that arbitration faces in different cultures, particularly among Muslim cultures, will be incomplete unless one considers the relationship between arbitration and culture, as well as the important rhetorical and psychological role that language plays in the arbitration process in various geopolitical contexts. Unfortunately, the international arbitration communities ignore the role in international arbitration of culture. Most of the time, the observed cultural disparities in the arbitration procedure were limited to civil and common law distinctions. The biassed behaviour of Western legal practitioners, arbitrators, and lawyers contributes to a reciprocal anti-arbitration culture among Arab legal communities.
The justification for the disqualification of Arab arbitrators could be regarded as weak logic, especially given that arbitration tradition has long existed in Arab communities and, indeed, even before Islam. International arbitration in Iran, however, follows the same course as in other Muslim-Arab countries. Unfortunately, the same issue occurs when it comes to studying arbitration in Iran: a lack of knowledge and relevant statistics. An key aspect that prevails is the Iranian government’s prejudiced behaviour and hostile culture toward international arbitration. There are several reasons for the absence of Arab arbitrators on the panel.
the international arbitration system, but one of the key causes is Western colleagues’ rejection of the Islamic world’s legal system and Arab lawyers. This negative attitude toward Islamic culture has a negative impact on both the arbitration procedure and the attitudes of parties and lawyers toward arbitration. This, in turn, influences Muslim countries’ attitudes toward international arbitration. However, one may argue that Arab countries, as well as Muslim practitioners and academics, have a responsibility to give assistance and guidance on Shari’a to Western researchers and practitioners, as well as changing the preconceived notion of Shari’a as a set of primitive principles To achieve this goal, Arab countries’ lawyers and practitioners must become more acquainted with the notion of international arbitration. This can be accomplished through more structured efforts to improve international arbitration education in Islamic countries through university programmes or special seminars and workshops on international arbitration, as well as by creating an environment conducive to more substantive and continuous dialogue between Western arbitrators and their Muslim counterparts.