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Ayad, Mary

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  • Paper Title: Integrating General Principles of Civil, Common, and Islamic Law in Foreign Investment and Oil Concession Arbitrations to Draft a Harmonised International Commercial Arbitration Law Code
  • Department Affiliation: Accounting and Corporate Governance
  • Supervisor’s Names:
    • Principal: Professor Peter Gillies
    • Associate: Doctor Ruwanthi Niloufer Selvadurai 

Abstract:

International Commercial Arbitration and International Investment Arbitration as they are currently practiced in the MENA1 as well as in other regions cannot be seen in isolation. The post colonial approach demonstrates that long standing historical forces have brought about the gains and developments in jurisprudence as well as the problems of the current age. The author is concerned with arbitrations in which one party is a MENA State2. From the early oil concessions up until the present, International Commercial Arbitration Law and International Investment Arbitration Law and practise have demonstrated that the central problem has to do with a conflict of laws. What is proposed herein is that common legal principles found at Civil, Common and Islamic Law, which form part or all of the legal systems in the MENA, can be distilled to create a new international commercial arbitration law code for adoption in the MENA. This code also addresses many of the doctrinal issues that arise in International Investment Arbitrations. To this end, this thesis presents the results of this research and proposes Draft Article Provisions for a Model Harmonised International Commercial Arbitration Law Code (HICALC) which are included in the appendix and are drafted in such a form that can be implemented forthwith. This research is highly practical and represents a synthesis of theory and practise. The majority of the MENA Law codes are a well-crafted blend of Civil and Islamic Law in which the Civil Law principles simply do not contradict with any Islamic provisions. This was Sanhuri’s genius. They were originally based on Sanhuri’s Codes to varying degrees. However, Common law principles derived either from English Common Law or Islamic customary usages are largely unidentified and as a result are ignored. This thesis seeks to redress this lacuna and fill the gap employing a comparative law method of analysis of the primary data which are cases, statutes and arbitral award decisions. The ever importance of this work in light of the revolutionary changes affecting the MENA make this research extremely topical. This new Code is highly groundbreaking and the legal climate in the MENA is now ripe for these reforms to be implemented therein although there are wider applications to other regions such as that of the Asia Pacific due to the common thread of Islamic law in many of the Commonwealth member states’ trading partners.

1MENA refers to the Middle East and North Africa.  
2The author shall employ the newly coined term ‘MENA-FI’ to refer to arbitrations that involve a MENA government on one side of a dispute and a foreign investor on the other side.