Ms Nathalie Najjar has assembled a masterful compendium of arbitration law in the Arab countries with the publication of this book. A true study of comparative law in the purest sense of the term, her work aims to put into perspective the solutions retained in the various laws concerned and to highlight both their convergences and divergences. She further assesses the value of these solutions in a way that seeks to guide a practice which, to this day, remains extraordinarily heterogeneous.
The author focuses on the laws of sixteen of the twenty-one States of the Arab League, in North Africa (Algeria, Egypt, Libya, Morocco and Tunisia), the Near East (Jordan, Lebanon and Syria) and the Gulf (Saudi Arabia, Bahrain, the United Arab Emirates, Iraq, Kuwait, Oman, Qatar and Yemen). The difficulties encountered in accessing local documentation compelled the author, for reasons of scientific rigour, to forego analysis of the laws of the Central African States of the Arab League (Djibouti, Mauritania, Somalia and Sudan) and Palestine. Similarly, despite its importance, Islamic law is not independently analysed, but rather is assessed to the extent that it serves as a source of inspiration for the solutions of the positive law of the States concerned.
Despite the fact that accessing sources is sometimes a delicate task, since judicial decisions are not systematically published in some of the jurisdictions studied, Ms Nathalie Najjar does not confine her study to an abstract presentation of legislative sources. Her book provides a careful analysis of a large number of unpublished decisions and provides a very realistic presentation of the attitude of the courts towards arbitration in the States studied. Moreover, her analysis of unpublished arbitral awards and lessons learned from numerous interviews with eminent practitioners, aptly rounds out the reader’s understanding of the reality of the practice of arbitration in these States. Her survey shows that, despite belonging to a common world, the diversity of which we will refrain from minimising, the laws of the Arab countries regarding international arbitration (and no doubt many other areas) are far from uniform.
Ms Nathalie Najjar’s book also reveals that arbitration law in the Arab countries is changing very rapidly. In her doctoral thesis, published a little more than a decade ago, the author called for a certain modernisation of arbitration law in the Arab countries. This modernisation can now be observed. The last decade, for example, saw the reform of Syrian law via the Law of Arbitration of 25 March 2008. More recently, the law of Saudi Arabia was reformed by Royal Decree No. M/34 of 24/5/1433H, which promulgated the Arbitration Regulation of 2012, a highly symbolic opening to the ordinary settlement of international
The author systematically examines modern and traditional sources of Arab arbitration law through the prism of the two requirements of international trade, freedom and safety, the same prism through which the whole law of arbitration is studied. The notion of freedom covers that of the arbitration agreement as well as the various choices that may be exercised by the parties, such as the selection of the arbitrators, the procedure or the law applicable to the merits of the dispute. It also comes into play when dealing with the arbitrators’ freedom to discern their jurisdiction, to manage the procedure as they see fit and to choose the law applicable to the merits of the dispute within the limits of “Arab public policy”. The notion of safety covers the arbitrators’ duties of independence and impartiality, disclosure and the fight against dilatory tactics. The notion of safety also includes issues relating to the effectiveness of arbitral awards, both with regard to the laws of the seat of arbitration and the laws of the States likely to be called to apply or recognise an award rendered abroad. These latter issues, the importance of which is well-established in terms of arbitration’s acceptance as an ordinary mode of dispute settlement in international trade, have been especially concerned by the wave of modernisation, which the author now analyses with the same precision and scientific rigour that she has always embodied.
Deepening and enriching, this study of comparative law initiated by Ms Nathalie Najjar more than a decade ago in light of the evolution of the legal, jurisprudential and doctrinal sources of the arbitration laws studied (closely linked to both her doctoral thesis and her subsequent brilliantly conducted professional activities) constitutes an essential guide to understanding the arbitration laws of the Arab countries. Her particularly valuable contribution is undoubtedly indispensable to any specialist in arbitration called to work with them, both as a practitioner and as a theoretician.
Emmanuel Gaillard
Professor Emeritus at Sciences Po Law School
Head, International Arbitration Group, Shearman & Sterling