التحكيم في المنازعات الماليّة في القانون الإماراتي : دراسة تحليليّة تقويميّة في ضوء مقاصد الشريعة

Abstract

This research is an analytical and evaluative study dealing with the arbitration of financial disputes in the UAE law in the light of the objectives of Islamic law (Maqaṣid). The Islamic jurists' opinions are collected, analysed, and the provisions of the UAE law concerning the issue are explained and evaluated in order to clarify the concept of arbitration in financial disputes, its types, and what distinguishes it from other means of settling disputes. The research also discusses the importance of arbitration, its effects, and cases of its invalidity in Islamic jurisprudence and UAE law. Moreover, arbitrator's conditions, powers and responsibilities together with issues of his disqualification and dismissal are explained as well as procedures taken in arbitration; such as approval and disapproval of arbitration request by the arbitrator, and enforcement of arbitration's ruling. Furthermore, the research discusses the implementation of foreign arbitration in UAE, the agreements and treaties to which the country has committed in related to arbitration, how to implement the foreign arbitration award, and arbitral awards which are uncompliant with the provisions of Islamic Sharia are discussed as well. In conclusion, the advantages and disadvantages of arbitration are mentioned. And the issues related to arbitration in the (Waqf) is examined to prove its independency and privacy of liability, together with the urgency of resorting to arbitration in certain conditions. The research concluded by mentioning results the most important of which are: all the UAE laws -in their understanding and interpretation- are based on the rules and principles of Islamic jurisprudence, and that the state has the right to refuse the implementation of foreign arbitral provisions violating the rulings of Islamic law. Also, there is no objection to signing legal agreements that have no provision for arbitration in Islamic law provided that they do not conflict with the provisions of Islamic law in a general sense. The results also indicate the impermissibility to rule on matters of arbitration in which a non-Muslim judge is used against a Muslim in arbitration, except in cases of necessity. It was found as permissible to appoint female as an arbitrator, and that the conditions for rejecting the arbitrator are the same as those for rejecting the judge. The endowment corporate body reserves the right to file lawsuits and plead in lawsuits filed against it, and that the endowments shall be subject to arbitration only through the judge and necessity of causation of arbitration by the arbitrator.