Introduction

Arbitration, while apparently a topic not easily fitting in the theme of “Justice Connections”^[913] is in fact just another way to achieve justice, albeit outside of the court system; a method that has become the mainstream dispute resolution mechanism in the international business arena.^[914] Its purpose of being a fast and personalised quasi-judicial process achieving the same legal outcome as the one provided through state courts, but through a more efficient procedure, is ensured by legal recognition and flexibility.

Legal recognition of arbitration is provided through national legislation^[915] and international conventions^[916] which create legal harmonisation and uniform treatment of arbitration within different legal systems.^{[917] [918] The certainty generated by similar legislation across borders — so essential in international disputes between parties having different backgrounds — is then, almost paradoxically, complemented with flexibility. This allows the parties to shape arbitration to their individual preferences and the particular needs of each dispute. The flexible character that allows arbitration to function as a personalised justice mechanism represents a unique advantage over State court litigation — while also presenting some risks.}

In order to achieve flexibility, international arbitration is regulated by a complex combination of sources of norms that can be classified into State laws (also including international conventions, as adopted by their member States), institutional rules,^[919] party autonomy,^[920] and the arbitral tribunal’s discretion. While these sources of norms are independent from each other and apparently self-standing, they are affected by influences originating from socio-political, cultural, or religious norms.

Limitations of this chapter — while not absolute — include the international and commercial character of arbitration. International arbitration is the area most likely to face conflicts between different sources of norms and different legal systems and international arbitration is used to solve mainly commercial disputes. Consequently, while not intentionally excluded, the chapter will not focus on domestic or non­commercial arbitration. A second limitation could be that our analysis is targeting only procedural aspects, in order to see whether the arbitration process itself is influenced for better or worse by accommodating religious influences. Consequently, no data on the merits of any dispute subject to arbitration will be considered, as procedure and substance can easily be separated and religious influences over the merits in arbitration have already been extensively researched.^[921]

We first consider the role of religion in international commercial arbitration, with special emphasis on Islam and Judaism having a strong presence in the sphere of international business, and reflecting similarities in their influence over arbitral procedures. We then analyse how these two religions affect the constitution of an arbitral tribunal, the arbitral proceedings proper and the recognition and enforcement of arbitral awards, as well as the broader implications of such religious influences over arbitration generally. The analysis will be based on consideration of sources of religious norms (such as the Qur’an and the halacha), of relevant State laws, of arbitral rules of various arbitral institutions (such as the American Beth Din), and of international conventions on arbitration.

Analysing the effect of religion on international commercial arbitration does not have the sole purpose of satisfying theoretical curiosity, but serves an essential and practical benefit. Members of the business community and legal practitioners facing or handling international disputes should consider these often less visible aspects when deciding whether a dispute could be better solved through religious arbitration or by other means. On one hand, if disregarded, religious norms may have an unexpected and often undesired impact over arbitration. On the other hand, however, arbitration can be the only forum where religious preferences can influence the procedure. Therefore, whether parties aim to personalise arbitration through religious influences or try to avoid possible pitfalls created by such influences, this chapter can provide the understanding of the possible consequences that free choice may trigger in international commercial arbitration. This chapter can provide the understanding of the possible consequences that free choice may trigger in international commercial arbitration, whether aiming to personalise through religious influences or trying to avoid possible pitfalls created by such influences.