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FAQs

Arbitration

What is Islamic Arbitration?
Arbitration is an alternative method of dispute resolution according to which the dispute is referred to one or more arbitrator’s proficient with Islamic Law (Shariah) who are empowered to finally settle it by rendering a final and legally binding judgment.

What is ADR?
ADR is commonly known as Alternative Dispute Resolution methods. Such methods mainly comprise Mediation and Conciliation. In certain institutions, ADR means Amicable Dispute Resolution methods.

Why Arbitration?
In arbitration, both parties could elect the rules governing the arbitral proceedings, the law applicable to the merits of the dispute, the place of arbitration, the language(s) of arbitration, the number and the qualifications of arbitrators. Arbitration is usually faster than litigation before national courts and parties could fix a date for rendering the arbitral award. Arbitral awards are final, binding and in most jurisdictions could not be appealed (i.e. could not be revised on the merits); they could be only challenged for very limited causes all related to the procedures. Furthermore, arbitration is confidential; the arbitral awards could not be published unless after obtaining the prior written approval of the parties.

Which disputes could be settled by Islamic Arbitration?
As a general rule, arbitration agreements could be concluded to settle all types of civil and commercial disputes except those related to matters that could not be the subject of an amicable compromise. Criminal matters as well as in some cases issues related to marital status are typical examples of disputes that could not be settled by arbitration.

What are the types of Arbitration?
Arbitrations are classified according to their nature into institutional arbitrations that are administered under the auspices and according to the rules of an arbitral institution, while ad-hoc Islamic arbitrations are not subject to the rules of any arbitral institution.

Who could conclude an arbitration agreement?
As a general rule, natural or juridical persons having capacity to dispose of their rights could conclude arbitration agreements. In case such persons are not directly or personally involved, a special power of attorney would generally be required in order for their legal representatives to conclude a valid arbitration agreement.

What are the types of arbitration agreements?
Islamic arbitration agreements could generally take the form of either an arbitration clause inserted in a contract before the dispute arises or a separate agreement concluded between the parties after the dispute has arisen. In both cases, the arbitration agreement should be in writing.

Do courts have jurisdiction in the presence of an Islamic arbitration agreement?
As a general rule, courts seized with a dispute in respect of which an arbitration agreement exists do not have jurisdiction to settle such dispute; they should declare the case non-admissible provided that the respondent invokes a plea of non-admissibility before submitting any claim or defense regarding the merits of the case.

What is an Islamic Arbitral Tribunal?
An Islamic arbitral tribunal is a panel of one or more arbitrators (an odd number) composed according to the agreement of the parties in order to finally settle the dispute. In case the number of arbitrators is three, the arbitral tribunal is usually composed as follows:
Each party nominates an arbitrator and the two appointed arbitrators appoint the third arbitrator, who shall preside the arbitral tribunal.


Can anyone act as an Islamic Arbitrator?
As a general rule, the Islamic Arbitrator must not be a minor, subject to interdiction or deprived of his civil rights. The arbitrators need not be of a specific sex or nationality or religion unless otherwise provided by agreement between the parties or by provision of law. An Islamic arbitrator should accept the mission entrusted to him in writing and should disclose any circumstances that may cast doubts with respect to his impartiality and independence.

How much does Islamic Arbitration cost?
In institutional arbitrations, arbitration costs generally comprise registration fees, administrative fees and arbitrators' fees. The calculation of the last two fees is usually made as a percentage of the sum in dispute.

How could arbitral awards be enforced?
As a general rule, arbitral awards enjoy the authority of res judicata and could be forcibly executed against the loosing party after obtaining an enforcement order (exequatur) from the competent national court where the enforcement of the award is sought. In case of foreign arbitral awards, the New York Convention of 1958 for the recognition and enforcement of foreign arbitral awards, which is ratified by many countries including Egypt, facilitates the recognition and enforcement of arbitral awards whose enforcement is sought in a country other than the one where they were rendered.

Mediation

Can the mediation be done at my office?
Yes. Mediation can be done in any location which will provide an atmosphere for meaningful dialog and positive participation by all concerned parties

How long does it take to complete mediation?
There is no simple answer to this one. Every dispute is unique and the participants are unique in their perceptions, goals, perceived needs and perception of the other party’s. Some disputes can be resolved in a few hours, other, more complex disputes, take several sessions which depending upon the respective schedules can be held over the course of a month or more.

Do I need a lawyer to represent me at the mediation?
No. Mediation is not a set procedural process like litigation. Mediation is about what YOU want and are willing to give in order to reach resolution.

Can the mediation be done on a telephone conference call?
Yes. Some mediation are amenable to this style of communication but others may not be.

What happens if we cannot resolve our dispute using mediation?
If a true impasse is reached then there are several alternatives. One of the most common follow on procedures to mediation is arbitration. This is often agreed to prior to the beginning of the mediation i.e. If a resolution is not reached we will have the matter arbitrated. This is referred to as Med-Arb.


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