ADR, ISLAM AND THE UK
The UK is broadly accommodating of ADR processes such as conciliation and arbitration, whether of commercial or private disputes, and allows parties to choose the law that they wish to apply to their agreements.
Thus, section 4 (2) of the Arbitration Act 1996[386] allows ‘the parties to make their own arrangements by agreement but provides rules which apply in the absence of such agreement’. For this purpose, an applicable law determined in accordance with the parties’ agreement, or which is objectively determined in the absence of any express or implied choice (via the Act), shall be treated as chosen by the parties.
The Act also states in sections 4 (4) and (5) that:
(4) It is immaterial whether or not the law applicable to the parties’ agreement is the law of England and Wales or, as the case may be, Northern Ireland.
(5) The choice of a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter provided for by a non-mandatory provision of this Part is equivalent to an agreement making provision about that matter.
These provisions are accommodating and facilitative of the use of religious norms, including of Muslim legal traditions, in the context of choice of law clauses for arbitration in the UK.
Moreover, as stipulated in the landmark decision of the UK Supreme Court, Jivraj v Haswani,[387] arbitral agreements can require arbitrators to have a particular religious background or affiliation in UK law, including, as in the Jivraj case, to have affiliations to a Muslim background. The Court stated that (at paragraph 61):
61. One of the distinguishing features of arbitration that sets it apart from proceedings in national courts is the breadth of discretion left to the parties and the arbitrator to structure the process for resolution of the dispute.
This is reflected in section 1 of the 1996 [Arbitration] Act which provides that: ‘the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest’. The stipulation that an arbitrator be of a particular religion or belief can be relevant to this aspect of arbitration. As the ICC puts in its written argument:The raison d’etre of arbitration is that it provides for final and binding dispute resolution by a tribunal with a procedure that is acceptable to all parties, in circumstances where other fora (in particular national courts) are deemed inappropriate (e.g., because neither party will submit to the courts or their counterpart; or because the available courts are considered insufficiently expert for the particular dispute, or insufficiently sensitive to the parties’ positions, culture, or perspectives).
Thus, when the above material is considered as a whole, there is no preclusion to the use of religious, and Islamic, norms in ADR process in the UK, but for normal concerns of natural justice and conformity with public policy. Indeed, this was neatly summarised and one might even say endorsed by Lord Phillips (the then Lord Chief Justice of England and Wales) in a famous speech when he said: ‘There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution.’[388]
There is, however, considerable debate as to whether there is any fundamental inconsistency - or indeed incompatibility - between the basic norms of Islamic law and justice and of British public policy (or, to the minds of some, even of British natural justice).[389]
Another challenge, highlighted by the well-known case of Beximco,[390] is the meaning that an appeal or reference to Islamic legal principles might have at law. In Beximco, the agreement stipulated a choice of law clause that said ‘[s]ubject to the principles of the Glorious Shari’ah, this agreement shall be governed by and construed in accordance with the laws of England’.
The challenge for the Court was to make sense of this stipulation, especially the meaning to give to ‘the principles of the Glorious Shari’ah’. Lord Justice Potter wrote (at paragraph 52):The general reference to principles of Sharia in this case affords no reference to, or identification of, those aspects of Sharia law which are intended to be incorporated into the contract, let alone the terms in which they are framed. It is plainly insufficient for the defendants to contend that the basic rules of the Sharia applicable in this case are not controversial. Such ‘basic rules’ are neither referred to nor identified. Thus the reference to the ‘principles of... Sharia’ stand unqualified as a reference to the body of Sharia law generally. As such, they are inevitably repugnant to the choice of English law as the law of the contract and render the clause self-contradictory and therefore meaningless.
He added (at paragraph 55):
Finally, so far as the ‘principles of... Sharia’ are concerned, it was the evidence of both experts that there are indeed areas of considerable controversy and difficulty arising not only from the need to translate into propositions of modern law texts which centuries ago were set out as religious and moral codes, but because of the existence of a variety of schools of thought with which the court may have to concern itself in any given case before reaching a conclusion upon the principle or rule in dispute.
Hence, the courts in England and Wales have recognised that there is a diversity of opinion within Islamic law and reliance upon these legal traditions will therefore have to take cognisance of challenges arising from this interpretational plurality.
In addition to the use of Islamic law norms in choice of law clauses discussed above, one area that has generated considerable discussion in the last few years is the phenomenon of ‘sharia courts’ in the UK. To be clear, this term is a misnomer as these are not courts in the proper sense of the term inasmuch as they are not formal parts of the judicial system.
Rather, the ‘courts’ are community-based and community-organised mediation and arbitration fora, which employ a framework of Islamic law in mediating disputes or arbitrating, as the case may be. These institutions deal almost exclusively with personal or family law matters that might otherwise go to the mainstream civil courts.In this context, ‘Islamic ADR’ is thus a private matter in the UK and has arisen out of a desire amongst Muslims to have their affairs settled or dealt with in accordance with the norms of Islam. The different bodies such as the Muslim Arbitration Tribunal (MAT),[391] the Muslim Law Sharia Council,[392] Islamic Sharia Council,[393] the Sharia Council of Britain and other bodies, in the main, serve, different Muslim communities. They also employ different procedures. The MAT, for example, has its arbitration panels sit with a qualified solicitor. The Ismaili Conciliation and Arbitration Board (CAB) for the UK, which caters to the needs of its community, also seeks to make extensive use of solicitors amongst its members; however, this is not necessarily the case with all the other bodies. Some will rely not so much on qualified solicitors but rather upon those with ‘Islamic’ credentials, i.e. those learned in the religious law. Most of the bodies will also try to mediate disputes as much as possible using their good offices and moral suasion to seek reconciliation, if possible, or to realise some other form of mutually agreed, amicable settlement. Arbitral determinations are resorted to when such efforts do not succeed.
Procedurally, what takes place at these bodies varies. Some have more elaborated, formal systems, while others may be more amorphous. The greater the involvement of qualified solicitors, with the lawyer’s penchant for procedure, the more formal one can expect the processes to be. What is distinctive in these procedures, however, and what gives them their cultural and normative weight, is that they may all seek to combine different varieties of ADR - i.e.
negotiation, mediation and arbitration - and to make reference to Islamic legal norms (such as with respect to inheritance or custody or forms of divorce). The processes might then be seen to be both normatively and procedurally ‘blended’ in drawing upon not just the rules (hukm; pl. ahkam) of Muslim legal traditions - as these are understood and interpreted by the communities/community institutions - but also the above-noted emphasis on the methodologies of sulh, if possible, and then the use of arbitrators, having in mind the context of the British law and the British courts, because, in all instances the work of the boards or councils takes place either in the context of arbitration and thus the framework of the Arbitration Act 1996 or as part of less formal ‘community-based justice’. The work of these entities is, therefore, reviewable by the state courts and they all therefore are conscious, in various degrees, of the fact that they operate in the shadow of state law and the state institutions. John Bowen reported that from work he has done looking at the work of these institutions, ‘Today Muslims [in the UK] generally turn to civil courts for custody and financial disputes, as well as for civil divorces, and to the [Islamic] tribunals only for religious divorces. So the situation is largely one of distinct legal worlds with some shadow arbitration and no substitution.’[394]14
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Overall, what the British approach facilitates, therefore, is a series of things which bear exposition. First, it allows for British Muslim communities to establish bodies that are expressive of ‘Islam’ and its norms as they understand these. In so doing, the British state does not provide a definition of the relevant norms of Islam; rather, it accommodates the different normative understanding of Islamic law that may exist amongst British Muslim communities. This accommodation is significant because it aligns with the oft-noted interpretational diversity of Islamic law, a diversity that is more plural than just saying that there are four (or five or more) major ‘schools’ (maddhabs) of Islamic law.
In turn, the institutional space for the different interpretive traditions means that Islamic norms are understood from the community level up, rather than decided in a top-down manner such that the institutions and their processes are ‘Islamic’ insofar as they are seen to be so by the communities and individuals who would use them. Second, the British model allows for individual British Muslims, if they so choose, to access these institutions to resolve disputes that might arise in family law (mainly) but also other contexts. This element of choice is significant because it keeps recourse to Islamic bodies a ‘voluntary’ matter and allows the users to exercise their agency in accessing these fora.[395] Finally, the British framework puts the ‘sharia courts’ regime under the aegis of the general British state legal system, rather than as a standalone or parallel system. With such a set up not only is there normatively the overhanging ‘shadow of civil law’ as noted above, but in addition, or as part and parcel of this same situation, the civil courts remain as a back-stop to the ‘sharia courts’, as well as offering the institutional opportunity for appeal.IV.