Religion in the Arbitral Proceedings

In addition to preliminary issues like the composition of arbitral tribunals, conflicts between religious traditions and other sources of norms regulating arbitration may also occur at later stages of arbitral proceedings.

Shari’a arbitration

The only recognition of Shari’a law in arbitral procedure appears to be in the very recent Arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration,^[992] created for disputes that “arise from commercial transactions that may contain Shariah elements or premised on Shariah principles”,^[993] reflecting some of the procedural issues such disputes face in international arbitration. Although the rules do not require arbitrators to be Muslims, they do impose that all Shari’a related issues be referred to the Shariah Advisory Council,^[994] whose decision is binding upon the tribunal and the parties.^[995] International arbitration is apparently “beyond the purview of the relevant council”,^[996] but in such cases, all Shari’a issues are to be referred to a Shari’a expert, whose ruling “the arbitrator shall apply... when deciding the dispute and giving the award”.^[997] Even though this rule seems to ameliorate an imposed external decision by transforming it into evidence, this evidence has the same mandatory application as the Council’s decision — the only difference being in the identity of the person(s) providing that ruling. Such mandatory delegation of decision­making raises serious concerns as to the arbitrators’ authority and the arbitral jurisdiction in general.

International arbitration affected by the parties' religion

The religious affiliation of arbitrating parties may affect disputes that are otherwise not qualified as religious arbitration, especially when the tribunal does not share the same religious beliefs. In the absence of any rules incorporating religious norms in the arbitral procedure, however, there is no legal consequence — either at national or at international level — for disregarding such preferences.^[998] For this reason, it becomes essential to have arbitrators who understand and respect religious practices, and are open to give primacy to religion over a rigid efficiency- driven procedure. Alternatively, a conflict with religious customs would in most cases end with religion being “the losing party”, since the price for protecting one’s religious beliefs may be losing the case. In a Jakarta case,^{[999] [1000] for example, the chairman scheduled hearings during Idul Fitrf1 despite the objections of the involved Indonesian counsel and witnesses. In light of the threat of a default award, should the parties fail to appear at the hearing, the leading counsel and the witnesses could not obey the traditional ceremonies of their religion. They could have made a different choice, of course, by prioritising their religious norms and refusing to comply with the rules imposed by the tribunal. The consequences of such a choice, however, would have been far worse than mere disappointment: a default award against the party represented by the Islamic counsel and supported by Islamic witnesses leaving more behind than just a bad impression on arbitration.}

This unfortunate example shows that, while theoretically arbitration is the forum where religion could easily find its place due to party autonomy and an overall malleable procedure, it is difficult to balance the flexibility of arbitration, including religious preferences, and the pursued efficiency of the process.

Religious impacts on taking evidence in arbitration

Religious influences can also become obvious with regard to taking evidence in arbitration, mainly affecting the witness testimony of women

— an issue present under both Islamic and Jewish tradition. Proceedings conducted under Shari’a law require the oral testimony of two adult Muslim male witnesses.⁸⁸ However, some Islamic schools of thought provide that, should two adult Muslim males be unavailable as witnesses, the oral testimony of one male and two female witnesses will suffice, “thus indicating that the word of two women is equal to the word of one man”.⁸⁹ Strict Jewish law — although not reflected by current jurisprudence

— also excludes women, invalids and non-Jewish individuals from testifying as witnesses.^[1001]

These limitations on the acceptance of witness testimonies may be deemed discriminatory in the secular system and may also be seen as undermining due process. Should arbitration — more possible in religious, less likely in modern arbitration — prove to be flexible enough to allow such religious rules to find their way in arbitral proceedings, although would probably please any fundamentalist participants to that arbitration, their conflict with rules of natural justice would undermine the recognition of arbitration in the international arena.