The Role of Religion in International Commercial Arbitration
Arbitration is capable of accommodating religious norms due to its “guiding principle in determining the procedure to be followed” being party autonomy,[922] but also as a result of religion-based State laws affecting international arbitration.
Religious expectations or regulations can affect any phase of the arbitral procedure, from the composition of the arbitral tribunal appointed to render a decision in the dispute, through to the arbitral procedure proper including the procedural steps taken during the running of the case, and to the post-award phase in which the arbitral award rendered in the case obtains legal recognition and is finally enforced. Religious norms taking the form of mandatory State law, while not common, can affect all three steps, while religious preferences manifested through party autonomy can only affect the first two, as recognition and enforcement are subject exclusively to legislation, not leaving room for party autonomy to shape this phase.Whilst trade and commerce in western countries may not commonly involve religious influences, the same is not true of religious legal systems, where arbitration can be directly or indirectly regulated by religious scripture, even though that is not part of their main objective. Not surprisingly, the impact of religious norms over arbitration is most evident in cultures having strong religious traditions, notwithstanding the existence of modern statutes adopted with the aim of legislative harmonisation.[923]
Religion as law is based on the principle that the word of God is law,[924] and as such cannot be amended or legislated against by judges or governments. Nevertheless, scripture never provides a thorough and detailed legal system, but often serves as the basis for further legislation. The Qur’an[925] for example, although containing some law, acts primarily as a source of further law through interpretation[926] and precedent, forming the body of law known as Shari’a.[927] The only country basing its entire legal system on Shari’a is Saudi Arabia; most other Muslim countries have a mixed system, combining Shari’a with codified, non-religious legislation.[928] In contrast, the use of the Jewish Halakha (which includes biblical[929] and rabbinic law[930]), while still used by some Israeli communities, is not mandatory under Israeli law.[931] Judaic religious principles, however, are commonly used within Jewish communities even in western, nonreligious legal systems, where the legal consequences of such rules are often recognised.[932]
The traditional presence of Jewish investment and the desire to attract Islamic finance in western economies play a significant role in shaping international commercial arbitration, since theoretically any financial relationship may end up in a dispute.
As no other religion has such a strong presence in the international business world as Islam and Judaism, this chapter will only focus on the influence of these two religions on international commercial arbitration.