تعيين المحكم ومساءلته :دراسة تحليلية في ضوء الفقه الإسلامي والقانون السوري
This research studies arbitration in Shariah and Syrian law. Arbitration is an important way to settle disputes among individuals, companies and states. To be precise, the appointment and questioning of arbitrators are the main topics of this research due to their importance and the problems that ha...
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| Summary: | This research studies arbitration in Shariah and Syrian law. Arbitration is an important way to settle disputes among individuals, companies and states. To be precise, the appointment and questioning of arbitrators are the main topics of this research due to their importance and the problems that have arisen around them. The research problem is the incompetence of many arbitrators and the lack of serious arbitrators’ accountability in the Syrian law that is understudied. The lack of specific, clear and inclusive items leads to issuing rejected or liable to rejection judgements. This necessity propels researchers to raise this issue and study it to contribute for future improvement. The study identified the concept of arbitration and arbitrator to settle the lack of distinction that may occur between arbitration and others similar professions. The terms and conditions of selecting arbitrators are also identified. The study also clarified the concept of accountability and the possibility of enforcing accountability measures on arbitrators. The researcher used the inductive method to collect information and evidences from both Shariah and Syrian laws. The analytical method was also implemented to analyze and interpreting legal texts and materials. The comparative approach was utilized for comparing Shariah law with Syrian law. The main finding of the study is that the Shariah law assigned specific characteristics of arbitrators which are absent in the Syrian law. This situation left the door open for opponents to select incompetent arbitrators. The second finding is that appointing an arbitrator in the Shariah and Syrian laws is handled by opponents. Early jurists said that it is not permissible to appoint arbitrators by judges or rulers. In contemporary Islamic jurisprudence, the Accounting & Auditing Organization for Islamic Financial Institutions legalized the appointment by the judiciary and arbitration centers. This contemporary view is consistent with the Syrian Arbitration Law. This study also found out that in order for the arbitrator to shoulder responsibility, in the Shariah law, the mistake he committed must be gross or deliberate. In Syrian law, however, the arbitrator bears the responsibility regardless of the degree of the mistake. In order to solve the problem, the study concluded that it is necessary to amend the mandatory qualifications of arbitrators by requiring new qualifications such as practical experience and educational qualification. Also, the degree of responsibility in Syrian law should be amended only in case of serious and deliberate error, and the Syrian Arbitration Law should include accountability rules. The establishment of a special union of arbitrators is recommended. A law to regulate the profession of arbitration is also recommended |
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