‘The concept of affable settlement of disputes in Sharia Law’

- Mohammed Rakib-Ul-Hassan

Saria law final

Published On - December 11, 2017 [Vol. 7, Jul - Dec, 2017]

Abstract: The existence of affable resolution of disputes in Sharia Law is unknown to many. The cognition of affable resolution of disputes in Sharia Law can be traced back to the very outset of Islam (1400 years ago). Religious and cultural underpinnings have long been considered as insight factors in order to decipher the very existence of alternative dispute resolution (hereinafter referred as ADR) in Sharia Law. Due to the reasons of escalating interest of business and trade of the West (in particular) in the Middle Eastern Countries and Private International Law disputes (namely family law related cases) being handled by the West and other countries where Sharia Law does not exist, the impulse for a proper illustration and dispersal of the existence of ADR has become an indispensable task. This paper discusses sulh (amicable settlement) and arbitration in light of Sharia Law. This will also look at the incongruities between the perceptions of Islamic ADR and Western ADR.

 

Introduction

Allah says in the holy Quran that ‘‘the believers are but a single brotherhood, so make peace and reconciliation (sulh) between two (contending) brothers; and fear Allah, that ye may receive mercy.’’[1]This verse along with the other analogous ones of the holy Quran trumpets the permissibility of ADR or amicable settlement in Islam. The concept of ADR engrosses a soaring religious prominence due to the fact that the origin of sulh (amicable settlement e.g. negotiation, mediation, and compromise of action), tahkim (arbitration), a combination of sulh and tahkim (med-arb), muhtasib (ombudsman) is Quran.[2] The Prophet (PBUH) was the first proponent of ADR or amicable settlement. He (PBUH) was so benevolent and supportive of the amicable settlement that He (PBUH) was ready to condone the use of exaggeration and mis-statement if it is made for the sake of amicable settlement. A hadidth in this regard is worthy to be noted: ‘‘Narrated Um Kulthum Bint Uqba that she heard Allah’s Apostle (PBUH) saying he who makes peace (sulh) between the people by inventing good information or saying good things, is not a liar.’’[3]

In regard to the import of ADR honourable Eliot Richardson, in a publication of the Euro-Arab Arbitration System stated that, ‘‘to pursue a lawsuit is to gamble on victory. To elect conciliation is to seek fairness. Victories undermine relationships. Fairness strengthens them. Those who build for the long term would do well to choose conciliation.’’

The mainstay and leading brainchild of Islamic Sharia[4] is based upon the magnetism of interests and preclusion of harm to human beings.[5] Following such notion in any kind of dispute resolution is therefore an inevitable substance. A famous letter which the second Caliph of Islam –Umar Bin Khattab (May Allah be pleased with Him) wrote Abu Musa Al-Ashari after appointing him as qadi (judge) contained rules to guide him in terms of deciding cases. The Caliph stated in the letter that ‘‘All types of compromise and conciliation among Muslims are permissible except those which make haram (unlawful) anything which is halal (lawful), and a halal as haram.’’[6]

It is evident that the Middle Eastern Countries are highly predisposed to the words and interpretation of Quran and Sunnah. This is because Islam is not just a religion, it is a complete code of life.[7] DIN –the Arabic word for the religion,…encompasses theology, scripture, politics, morality, law, justice and all other aspects of life relating to the thoughts or actions of men.[8] A discrete facet of Islam is that all its’ rules and regulations are codified that regulate and have a hold over each and every behavioural aspects of individuals in the society and in its relations towards the state. Islam also includes a just and precise economic order, a well stable social organisation and codes of civil and criminal law. The rudiments of Sharia (Islamic Law) consist of two segments, one teaches the rituals of ibadat which are legislated by God and explained by the Prophet (PBUH), and the other segment deals with civil transaction and state affairs.[9]

This paper will discuss sulh (amicable settlement) and arbitration in light of Sharia Law. Incongruities between the perceptions of Islamic ADR and Western ADR will also be discussed.

 

Sulh & Arbitration

Sulh: Sulh is an Arabic word, it means ‘peace’. The word sulh has been derived from the Arabic word musalaha which means reconciliation. In another way it could be termed as an amicable settlement. Apart from the legal rules and regulations, sulh is rooted upon the relational factors between the individuals of the society and the collective interest of the family, tribe, community, religion, country, race. The process of sulh can be undergone by the parties to a dispute themselves or through the appointment of a judge (qadi), arbitrator (hakam) or conciliator. However, there should be a consensus between the parties as to who will be the qadi, arbitrator or conciliator to their dispute.[10] The concept of collective theory is the distinguishing factor between the Islamic ADR and Western ADR. This area will be discussed later in this paper. The importance of sulh can be found in numbers in hadidths. Prophet Muhammad (PBUH) said sulh is more rewarding than voluntary fasting, praying and offering charity.[11] Prophet Muhammad (PBUH) always encouraged to compromise and mediate not only in private and family related disputes but also in public disputes, e.g. fighting between clan members. A very infamous hadidth in this regard is apposite to mention. Prophet (PBUH) warns: ‘‘you bring me lawsuits to decide, and perhaps one of you is more skilled in presenting his plea than the other and so I judge in his favour according to what I hear. He to whom I give judgment something that is brother’s right, let him not take it, for I but give him a piece of fire.’’[12] The above mentioned hadidth is an evident of how gravely our Prophet (PBUH) was lean to sulh. It is clearly palpable that the hadidth that the importance has given more to the method of sulh than the orthodox judicial system. However, the latter has not been discarded either. But as long as it is possible to do every dispute should be preferred to resolve through the process of sulh. The second caliph Umar Bin Khattab (May Allah be pleased with Him) being critical about the orthodox judicial system stated that, ‘‘Dispel the disputants until they settle amicably with one another, for truly adjudication leads to animosity.’’[13] Molla Khusrew (d. 885/1480), the author of the Durar al-Hukkam fi Sharh Ghurar al-Ahkam, a significant and weighty legal treatise for scholars of the legal fraternity and judges since fifteenth century states in the introduction part of adjudication chapter which then follows the chapter of sulh that ‘‘ Adjudication is needed only when there is no sulh between two litigants.’’[14] However, the arbitrator or the judge cannot turn the parties away if they cannot solve their problems by themselves. Umar Bin Khattab (May Allah be pleased with Him) was reported to have directed in his letters to his representatives in the different parts of the Muslim Empire: ‘‘And strive for conciliation so long as the rendering of judgment does not become evident to you.[15] It has been stated by Al-Shafi that if a judge recommends the parties to a dispute to go for sulh and later the parties become unable to solve the matter between them then the judge cannot move away but to resolve the dispute between. Al-Shafi has also forewarned the judges against giving judgment in hastiness since it might amount to oppression if decision is not unambiguous and readily understood.[16] His follower al Qass (d. 335/946-947) claims that although there is an ijma that the judge can delay judging if he desires sulh however it should be with the consent of the parties. Ibn hajar al_Asqalani (d. 852/1449) acquiesces to the matter as well stating that the judge should still be pushing the parties for sulh even if he knows how he should be judging the case.[17]

It often seems to be difficult for the judges to decide whether to push a case for sulh or not. The nature of the case in this regard is very crucial. There are obviously some impediments in between like the cases which are of criminal nature cannot be conferred for sulh unless they are of very minor issues. In order to keep the symmetry between sulh and orthodox judicial proceeding, there should be some decisive guidelines or indications for the judges as to when they should push a case hard for sulh. The reason the word ‘hard’ has been used here because judges should prima facie and disregarding the nature of the crime, enthuse the parties to mitigate or exterminate problems between themselves since there are clear indications (as mentioned above) in both Quran and Hadiths for sulh. Ibn Farhin has given some insinuations to the judges as to when to employ the concept of sulh in cases. (1) When the parties have a kinship with one another, (2) When the disputants are people of good virtue and good standing in the society, (3) When there is a risk of increased hostility between the disputants, (4) When the nature of the case of such a kind that it is difficult for the judge to adjudicate or decide.[18]

Arbitration: It is imperative to draw distinction between the limbs of ADR namely, sulh and arbitration. Both the limbs are used to wipe out discord between the disputants. However, the arbitration is undergone with the help of a neutral third party who should be nominated with the consensus of both the disputants whereas suhl as has been mentioned above can be undergone with and/or without the participation of third party. Another discrepancy between these limbs is in the bindingness of their decisions. In arbitration the decision of the arbitrator is final and binding since they are often appointed by the court which is also called court annexed ADR. On the other hand, in sulh the decision is not always binding unless it’s decision is given by a qadi or judge in front of a court of law. The first chosen arbitration in Islam is Prophet Muhammad (PBUH), infact He (PBHU) was preferred to be an arbitrator even before He (PBUH) became Prophet. It was because of His (PBUH) fidelity and honesty. The most famous dispute where the Prophet (PBUH) acted as an arbitrator was regarding the black stone of Mecca. The cacophony arose due to the disagreement between the then sheikhs in the matter of placing the holy black stone. Each sheikh frenziedly wanted his tribe to have the honour of carrying and placing the black stone. Since the then sheikhs could not settle the matter between themselves, they asked Prophet Muhammad (PBUH) to look at their matter and give them a solution. The Prophet (PBUH) took His (PBUH) robe (bisht) and placed the black stone in the centre. After positioning the black stone in the middle He then asked each sheikh to hold one side of the bisht and together carry and position the holy stone in whichever place they communally agreed upon.[19]

Arbitration is a proven beneficial limb of ADR. Regarding the preference between judicial proceeding of litigation and arbitration, parties have more tended towards the later due to the cost and time. By the end of the ninth century fiqh and Sunnah literature and treatise started to ripen more and take the inward and outward appearance what we have nowadays. Scholars have certainly realised the import and sombreness of arbitration as an alternative to the orthodox judicial litigation and a vital modus operandi in terms of solving family disputes.[20]

Arbitration has been recognised by the four sources of Sharia Law namely Quran, Sunnah (Prophetic tradition), ijma (consensus of opinion)[21] and qiyas (reasoning by anology).[22] Although all the sources of Sharia Law has accepted the notion of arbitration however none of the four schools of fiqh has unequivocally stipulated about arbitration because of the reason that most of the scholars have dealt with arbitration as a branch of litigation. Elucidation and enlightenment on arbitration has often been found in the chapters dealing with administration of justice ‘Al-Qada’. It might also be the fact at that time Islamic judiciary was adequate, flexible and passable enough to have handled and dealt with all kinds of cases.[23]   All the four schools of Sharia have decoded arbitration in a similar fashion that is to say arbitration is a process where a person has been chosen through the consensus of the disputants in order to resolve their dispute and subsequently impose judgment on them. The most far-reaching definition on arbitration has been given by a modern author who stipulates that ‘Arbitration is the submission by two or more parties to a third party of a dispute to be adjudicated according to Sharia’’.[24]

People especially lay persons often misunderstood the difference between arbitration and litigation in Sharia law because both of them are undergone in a formal and official manner. Like in the laws of other countries the core difference between arbitration and litigation does also lie in Sharia law. Things which have been stated above, i.e. the reference and clarification of arbitration, which people fail to come across in Sharia law since most of the scholars of different schools of fiqh have tried to define arbitration in the light of orthodox judicial proceeding. According to the different fiqh sources there are several differences between arbitration and litigation.[25] These are: (1) The submission of the arbitration requires the acquiescence of the disputants which is the not the case in litigation[26], (2) In terms of the jurisdiction, the arbitrator’s jurisdiction is confined within the case which he/she has been called for prescribed in the arbitration agreement, on the other hand the judge does not require to have any prior agreement to adjudicate any case brought before him[27], (3) Unlike a judge, an arbitrator cannot impose any injunction on a person who is not a party to the dispute, (4) In case of an arbitral award against the guardian of a debilitated person shall not be valid if it provides any damage against his interest and not approved by a judge, (5) Unlike a judge, an arbitrator has the authority to deal with disputes even if one of the parties domiciles in another country, The arbitral award cannot be enforced extraterritorially which is very much possible in litigation.[28]

It has already been mentioned that arbitrator should be chosen through the consensus of the disputants that is to say if there is any reluctance on the part of  either party for a prospective arbitrator then the latter should not be made arbitrator for that particular dispute. Another problem arises in case of gender of the arbitrator. Scholars of different fiqh have opined differently in this regard. According to Shafi, Maliki and Hanbali jurists, arbitrator has to be of male gender which implies that they are discarding women to be the arbitrators.[29] However, Hanafi and some Maliki jurists, such as Ubn Jarir al-Tabari and Ibn Hazm al-Andalusi opined that women have the same rights as men to handle arbitration.[30] Our second caliph Umar Bin Khattab (d. 23) appointed a woman (Al-Shifa) to serve as supervisor of the markets where she monitored the safety and accuracy of goods from fraud. In Islam, this process is known as ‘Hisba’ and indicates that a woman is capable of handling the arbitration process. Moreover, some women have surpassed men in different fields of knowledge e.g. science, medical, engineering etc.[31] Therefore discarding women from being arbitrators will not be wise in today’s world. On the other hand, unlike a judge, the role of an arbitrator is very limited to the case which has been assigned to him/her. Infact the court annexed ADR is influenced and somewhat controlled by judges. Sharia does not teach us to be discriminative as long as the gender of the arbitrators is concerned unless there is any clear assertion in the Quran and Sunnah which stipulates otherwise. Women were bestowed with a role in the fields of arbitration and reconciliation hired by the Saudi Minister of Justice to work as consultants in Saudi.[32]

 

Incongruities between Islamic ADR and Western ADR

It is discernible that although we are living in an era of globalisation, there still lies a great deal of difference between cultural contours of Arab-Islamic society and the West. Deep rooted attachment of family life, unique customs of hospitality and its traditions of conflict resolution are still the determining factors of Arab-Islamic World.  They are so attached to the collectivist kin-based society where an individual’s tribe and linage get priority more than anything else in almost every sphere of life.[33] West. Dale F. Eickelman  in this regard stated that, ‘‘while pastoral nomadism has declined rapidly in favour of village and city based models of social life, nomadic people and their traditions have left a deep imprint on Middle Eastern culture, society, and politics.’’[34]

Many institutional legal systems in the Arab-Islamic World are yet to have outright openness in the society and therefore is clandestine. Sulh is one of them, which until today is undergone through private network e.g. Imams and Sheikhs. By doing this they try to prevent the discord from being in the public domain which also heals the relationships between the disputants in quick time and exterminate any further dissension between them. [35] It is definitely a very good ploy since sulh is Arab-Islamic word and is not only used in commercial disputes but also in family related discord to a greater extent. Therefore, keeping things within the ambit of the family or somewhat stealthy for the others is wiser. It does prevent the relationships between the parties from further deterioration.

Western culture and ethos on the other hand prioritize individualism. Unlike the Arab-Islamic World, in most of the given system other than anything else the interests of the individuals are preferred. Such is also the case in dispute resolution, no relationship or exterior factor e.g. social wrench can ever have any impact on their dispute resolution. In terms of choosing the arbitrator in western societies, unlike the Arab-Islamic World the prospective arbitrator does not have to be from the same community or society as of the disputants. Arnaud Ingen-Hous while differentiating between Islamic ADR and Western ADR states that: ‘‘The East focuses on a procedure that is intuitive and informal while the West focuses on one that is cognitive and formal…While conflict resolution in the West focuses on the individual, in the East the individual is entangled with their own group or tribe.’’[36] It seems to be never ending debate since none of the concepts can ever be discarded outright and a closer inspection would reveal both the notions have positives and negatives which very much depend on the standpoints of the individuals. Moreover cultural factors are the biggest impediments which do not allow us to make an assimilation of Arab-Islamic societies and western societies.

The idea of ADR is to resolve disputes between the disputants in a way so that they can save money, time and resolve their problems in an amicable environment. To me resolving disputes upholding the rule of law in any kind of mechanism is acceptable. Keeping things secret and within the range of informal networks cannot always bring justice whereas openness and individualism do not ensure justice at all times either. Else no one on earth would have ever been aggrieved by any judicial decision where the process is so open, formal and official.

 

Conclusion

One of the enticing factors as to why the law of Middle Eastern Countries have to be made known and familiar with the entire world is the interest of business. People these days from all around the world tend to do business in the Middle Eastern Countries which sways the region to become more tantalizing for expanding investment. The US alone invests over $120 billion annually in the region while local sovereign wealth funds have over $1 trillion in annual transactions worldwide.[37] ADR mechanisms namely arbitration are more preferred by the public, private and multinational business institutions at present time. Infact many business institutions have strong setups for resolving both internal and external dissensions. The later indicates business discords between two different institutions of entities. This urges them to be aware of legal tenets, culture and ethos of different countries. As long as the private adjudication in the Middle Eastern Countries is concerned, it is deeply rooted by the Islamic culture and tradition. Sulh is the mechanism which is used extensively for ADR in this region. It is also used in the shape of arbitration as we have discussed earlier in this paper. It is not only the commercial side which makes the world to understand Islamic tenets but also the private international law issues relating to family disputes. George Irani contends stating that ‘‘There is a need to fathom the deep cultural, social and religious roots that underlie the way Arabs behave when it comes to conflict reduction and reconciliation…Issues such as the importance of matrilineal families; the question of ethnicity; the relevance of identity; the nature of tribal and clan solidarity; the key role of patron-client relationships; and the salience of norms concerning honour and shame need to explored in the their geographical and socio-cultural context.’’[38] People who are involved in legal practice in the Middle Eastern Region shall have to have a comprehensible idea about their culture and ethos since these do not impact only on their legal tenets and proceedings but also in every step of their lives. The very reason of this is that Islam is not only a religion; it is a code of life.

[1] Quran 49:10 (Surah Al-Hujurat)

[2] Syed Khalid Rashid, ‘‘Peculiarities & Religious Underlining of ADR in Islamic Law, Harun M. Hashim Law Centre, IIUM & Asia Pacafic Mediation Forum, Australia (2008) p.1

[3] Sahih Al Bukhari, vol. 3, p. 533 Eng. Tr. By Muhsin Khan, (Dar Al Arabia, Beirut, n.d.)

[4] Sharia is an Arabic word meaning the road to be followed. It is the path shown by Allah, the Creator Himself through his Messenger Prophet Muhammad (PBUH)- Abd ar-RahmanI. Doi & Abdassamad Clarke, Sharia Islamic Law (London Ta-Ha Publishers, 2008)p.23

[5] F. Kutty ‘‘The Sharia Factor in International Commercial Arbitration’’, LA Int’l & Comp. L. Rev. 28 (2006): 566

[6] The letter has been preserved. For the authenticity of the letter which is established with carbon dating process, see, D.D. Margolith, ‘‘Omar’s Instructions to the Qadi’’, Journal of Royal Asiatic Society, (1910), p.307 at 311-312; Asif A.A. Fyzee, A Modern Approach to Islam, (Lahore, 1978 ed. Of the original Indian Edition), pp. 41-46

[7] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.2

[8] D.S. Roberts, Islam: ‘‘A Western’s Guide-From Business and the Law to Social Customs and Family Life (London:Hamlyn, 1981) p.67-68

[9] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.2

[10] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.93

[11] Abu Dawood, 4273; al-Tirmidhi, 2433. classed as hasan by al-Albaani in Saheeh al-Tirmidhi.

[12] M. Ibn Anad (d. 179/795), Al-Muwatta (Beirut: dar al-Gharab al-Islami,1996) Vol. 2, Kitab al-Aqdiya [Book of Judgment, 2013]

[13] ‘Raddu-l-Khusum hatta yastalahu, fa-inna-l-qada yurith al-daghain, 8 (15304): 303-304; Ibn Abi Shayba, al-Musannaf 7 (2938): 213-14

[14] Awrada-hu bada-l-sulh li-anna-hu inna-ma yu htaj ilay-hi idha lam yakun bayna-lmutakhasimayn Sulh, Mehmed ibn Faramurz ibn Ali (Egypt: al-Matbaa al-Wahabiyya, 1264/1877) 497

[15] Quran 128 (Sura Nisa (Women))

[16] Muhammad ibn al-Shafi, al-Umm (Beirut: dar al-Kutubal-llmiyya, 1993) 6:312

[17] Ibrahim ibn Ali al-Shirazi, al Muhadhdhab (Beirut: Dar al-Kutub al-llmiyya, 1995) 3:404; Ibn H ajar al-Asqalani, Faith al-Bari fi Sharh Sahih al-Bukhari (Riyadh: dar al-Salam,2000) vol.5 (2706) 378

[18] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.12

[19] N.J. Coulson, A History of Islamic Law (Edinburgh: University Press, 1964)

[20] AbdulRahman YahaBaamir, ‘‘Sharia Law in Commercial and Banking Arbitration’’-Law and Practice in Saudi Arabia, (1st edn., Ashgate Publishing Limited, England & USA, p.57)

[21] In the technical sense, ijma is defined as: the consensus of mujtahids (independent jurists) from the ummah of Prophet Muhammad (PBUH), after His (PBUH) death, in a determined period upon a rule of Islamic law (hukm shariah). Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (New Delhi: Adam Publishers, 2006) p.183

[22] In the technical sense, qiyas as defined by Islamic jurists applies to ‘‘the assignment of hukm of an exciting case found in the texts of the Quran, the Sunnah, or ijma to a new case whose hukm is not found in these sources on the basis of a common underlying attribute called the ‘illah of the hukm’. Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (New Delhi: Adam Publishers, 2006) p. 214

[23] Y. Al-Samaan, The Legal Protection of Foreign Investment in The Kingdom of Saudi Arabia (1st ed. Dar Alandalus for Publication and Distribution, 2000). p.248

[24] S. Saleh, ‘‘Commercial Arbitration in the Arab Middle East: Sharia, Syria, Lebanon and Egypt (2nd edn. Heart Publishing, 2006), p.20

[25]AbdulRahman YahaBaamir, ‘‘Sharia Law in Commercial and Banking Arbitration’’-Law and Practice in Saudi Arabia,  (1st edn., Ashgate Publishing Limited, England & USA, p.57)

[26] Z. Ibn Nujaim, ‘‘Albahr Alraeq Sharh Kanz Aldaqaek’’ (2nd edn., Dar Alma’refah, 1993), Vol. 7, p.27.

[27] M. Alatasi, ‘‘Sharh Almjallah’’ (1st edn., Maktabah Haqqaniyah, 1949), article 1842.

[28] Ibid., p.28

[29] Ibn Mazah, Burhanduddin bin Muhammad, ‘‘Al-Muhit al-Burhani, Vol.3, p.398; Al-Sarakhsi, supra note 38, p. 111

[30] Ibid.

[31] Essam A. Alsheikh, ‘‘Distinction between Concepts of Mediation, Conciliation, Sulh and Arbitration in Sharia Law’’ Arab Law Quarterly 25 (2011) 387

[32] Ibid.

[33] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.96

[34] D. Eickelman, The Middle East and Central Asia: An Anthropological Approach (New York: Prentice Hall, 1997)

[35] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.97

[36] Arnaud Ingen-Housz, ‘‘ADR in Business: Practice and Issues across Countries and Cultures) (Dordrecht: Kluwer Law International, 2006)

[37] GCC Investment, retrieved from http://www.mckinsey.com/insights/mgi/research/africa_europe_middle_east

[38] L.E. King –Irani, ‘‘Kinship, class and ethnicity: Strategies for survival in the contemporary Middle East’’, in: D. Grener (Ed.), Understanding the Contemporary Middle East (Boulder: Lynne Rienner, 1999).

[1] Quran 49:10 (Surah Al-Hujurat)

[2] Syed Khalid Rashid, ‘‘Peculiarities & Religious Underlining of ADR in Islamic Law, Harun M. Hashim Law Centre, IIUM & Asia Pacafic Mediation Forum, Australia (2008) p.1

[3] Sahih Al Bukhari, vol. 3, p. 533 Eng. Tr. By Muhsin Khan, (Dar Al Arabia, Beirut, n.d.)

[4] Sharia is an Arabic word meaning the road to be followed. It is the path shown by Allah, the Creator Himself through his Messenger Prophet Muhammad (PBUH)- Abd ar-RahmanI. Doi & Abdassamad Clarke, Sharia Islamic Law (London Ta-Ha Publishers, 2008)p.23

[5] F. Kutty ‘‘The Sharia Factor in International Commercial Arbitration’’, LA Int’l & Comp. L. Rev. 28 (2006): 566

[6] The letter has been preserved. For the authenticity of the letter which is established with carbon dating process, see, D.D. Margolith, ‘‘Omar’s Instructions to the Qadi’’, Journal of Royal Asiatic Society, (1910), p.307 at 311-312; Asif A.A. Fyzee, A Modern Approach to Islam, (Lahore, 1978 ed. Of the original Indian Edition), pp. 41-46

[7] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.2

[8] D.S. Roberts, Islam: ‘‘A Western’s Guide-From Business and the Law to Social Customs and Family Life (London:Hamlyn, 1981) p.67-68

[9] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.2

[10] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.93

[11] Abu Dawood, 4273; al-Tirmidhi, 2433. classed as hasan by al-Albaani in Saheeh al-Tirmidhi.

[12] M. Ibn Anad (d. 179/795), Al-Muwatta (Beirut: dar al-Gharab al-Islami,1996) Vol. 2, Kitab al-Aqdiya [Book of Judgment, 2013]

[13] ‘Raddu-l-Khusum hatta yastalahu, fa-inna-l-qada yurith al-daghain, 8 (15304): 303-304; Ibn Abi Shayba, al-Musannaf 7 (2938): 213-14

[14] Awrada-hu bada-l-sulh li-anna-hu inna-ma yu htaj ilay-hi idha lam yakun bayna-lmutakhasimayn Sulh, Mehmed ibn Faramurz ibn Ali (Egypt: al-Matbaa al-Wahabiyya, 1264/1877) 497

[15] Quran 128 (Sura Nisa (Women))

[16] Muhammad ibn al-Shafi, al-Umm (Beirut: dar al-Kutubal-llmiyya, 1993) 6:312

[17] Ibrahim ibn Ali al-Shirazi, al Muhadhdhab (Beirut: Dar al-Kutub al-llmiyya, 1995) 3:404; Ibn H ajar al-Asqalani, Faith al-Bari fi Sharh Sahih al-Bukhari (Riyadh: dar al-Salam,2000) vol.5 (2706) 378

[18] Aseel Al-Ramahi, ‘‘Sulh: A Crucial Part of Islamic Arbitration’’, Islamic Law and Law of the Muslim World (Research Paper Series) at New York Law School, p.12

[19] N.J. Coulson, A History of Islamic Law (Edinburgh: University Press, 1964)

[20] AbdulRahman YahaBaamir, ‘‘Sharia Law in Commercial and Banking Arbitration’’-Law and Practice in Saudi Arabia, (1st edn., Ashgate Publishing Limited, England & USA, p.57)

[21] In the technical sense, ijma is defined as: the consensus of mujtahids (independent jurists) from the ummah of Prophet Muhammad (PBUH), after His (PBUH) death, in a determined period upon a rule of Islamic law (hukm shariah). Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (New Delhi: Adam Publishers, 2006) p.183

[22] In the technical sense, qiyas as defined by Islamic jurists applies to ‘‘the assignment of hukm of an exciting case found in the texts of the Quran, the Sunnah, or ijma to a new case whose hukm is not found in these sources on the basis of a common underlying attribute called the ‘illah of the hukm’. Nyazee, Imran Ahsan Khan, Islamic Jurisprudence (New Delhi: Adam Publishers, 2006) p. 214

[23] Y. Al-Samaan, The Legal Protection of Foreign Investment in The Kingdom of Saudi Arabia (1st ed. Dar Alandalus for Publication and Distribution, 2000). p.248

[24] S. Saleh, ‘‘Commercial Arbitration in the Arab Middle East: Sharia, Syria, Lebanon and Egypt (2nd edn. Heart Publishing, 2006), p.20

[25]AbdulRahman YahaBaamir, ‘‘Sharia Law in Commercial and Banking Arbitration’’-Law and Practice in Saudi Arabia,  (1st edn., Ashgate Publishing Limited, England & USA, p.57)

[26] Z. Ibn Nujaim, ‘‘Albahr Alraeq Sharh Kanz Aldaqaek’’ (2nd edn., Dar Alma’refah, 1993), Vol. 7, p.27.

[27] M. Alatasi, ‘‘Sharh Almjallah’’ (1st edn., Maktabah Haqqaniyah, 1949), article 1842.

[28] Ibid., p.28

[29] Ibn Mazah, Burhanduddin bin Muhammad, ‘‘Al-Muhit al-Burhani, Vol.3, p.398; Al-Sarakhsi, supra note 38, p. 111

[30] Ibid.

[31] Essam A. Alsheikh, ‘‘Distinction between Concepts of Mediation, Conciliation, Sulh and Arbitration in Sharia Law’’ Arab Law Quarterly 25 (2011) 387

[32] Ibid.

[33] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.96

[34] D. Eickelman, The Middle East and Central Asia: An Anthropological Approach (New York: Prentice Hall, 1997)

[35] Hamad al-Humaidhi, ‘‘Sulh: Arbitration in the Arab-Islamic World, Arab Law Quarterly 29 (2015) 92-99, p.97

[36] Arnaud Ingen-Housz, ‘‘ADR in Business: Practice and Issues across Countries and Cultures) (Dordrecht: Kluwer Law International, 2006)

[37] GCC Investment, retrieved from http://www.mckinsey.com/insights/mgi/research/africa_europe_middle_east

[38] L.E. King –Irani, ‘‘Kinship, class and ethnicity: Strategies for survival in the contemporary Middle East’’, in: D. Grener (Ed.), Understanding the Contemporary Middle East (Boulder: Lynne Rienner, 1999).

About The Writer

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Mohammed Rakib-Ul-Hassan

LLB (Honours), University of London, UK LLM (Commercial Law), University of Huddersfield, UK PhD Fellow, University of Zurich, Switzerland

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Welcome To "Law Journal BD"

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“Law Journal BD” is a timely and innovative step towards the growth and development of law. The Journal is a combination of articles from experts which will broaden the scope of our legal instrument and jurisprudence. I sincerely hope the initiative will help the lawyers to be more informed & committed to struggle for justice. It would be more appropriate to consider it as a work of compilation of contributions from various jurists, practitioners and academicians. The “Law Journal BD” publishes articles on all aspects of law.

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The “Law Journal BD” is the first Online Law journal in Bangladesh which specifically publishes law articles only. You will find here different kind of research based articles on various Law topics. The primary function of the journal is to publish lengthy comprehensive treatments of articles generally written by law academicians, Judges, or legal practitioners. A significant feature is that the distinguished writers analyze judicial decisions, contemporary developments of law, legislation and current law reform.

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