Qualifications of arbitrator 2 Essay Example | Topics and Well Written Essays - 5000 words

Qualifications of arbitrator 2 - Essay Example The SAL 2012 does not define this, but the set of its Implementing Regulations, which has not yet been issued, is expected to clarify this issue. Meanwhile, one could turn to its older version, the Implementing Regulations of the previous Saudi Arbitration Law, which included the same requirement.3 The regulations states that a person can be considered of good conduct if he has not been "sentenced to Had or Ta'zir4, to penalty for a crime of dishonor, or being dismissed from a public position following a disciplinary order."5 Taking from this conception as well as the body of previous court proceedings and judgments, it is clear that the requirement of good conduct is close to the requirement of Adalah in Sharia but it is not regarded as equal to it.6 This is because committing minor sins and persisting on them which are considered as acts contrary to Adalah according to Sharia do not always constitute an offense or offenses in the eyes of the law. Most of these do not call for the i ssuance of a judicial decision with Ta'zir or dismissal from public position at the present time in Saudi Arabia. 7 Therefore, what contradicts Adalah according to the perspective of Sharia does not necessarily contradict the good conduct in the Kingdom. One could also examine the motivations of the legislators. By refraining from mentioning Adalah in the law, the Saudi legislature is explicit in its intent. If Adalah was meant to be the same as the requirements for good conduct and reputation according to Sharia, then the framers would clearly mention it like what they have done in the Judicial Law concerning the requirement of eligibility. In that law, it was clearly stated that he who is appointed as a judge â€Å"shall have full judicial competence according to Sharia provisions†.8 In practice, the good conduct is a presumed quality in the arbitrator unless contrary is proven by who claims otherwise.9 Should the contrary be proven, it is supposed that the appointment of t he arbitrator is to be nullified in line with the Saudi Arbitration Law, which in turn exposes the arbitral award to challenge. There arises a question here concerning international arbitration and whether it is required for the arbitrator to be of good conduct and reputation within the criterion of the Saudi Law. This issue is addressed by adhering to the criteria of good conduct by the law, that which governs the arbitrator, as agreed upon by both parties in dispute. If the arbitrator is a Saudi national then the criteria of the Saudi Law is to be applied, if the arbitrator is from another state then that state’s criteria of good conduct is to be applied. This is due to the aim of the Saudi legislature from this requirement which is to issue a fair and correct award. Therefore, it is supposed to apply the law of the state of the arbitrator since it would be less contentious, more impartial and more appropriate barometer in determining the good conduct of its citizens. 1.1 L egal Capacity (Age of Puberty and Mental Ability) Sharia scholars agree that a judge or arbitrator should at least reach puberty and should be mentally able as well.10 They is based on the principle that the legal actions of immature and mentally ill persons - without the permission of their guardian - are not approved, and thus