Arbitration in Saudi Arabia and in the United States of America … Research Proposal
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Arbitrator's comparative study between Saudi Arabia and the U.S. A.
Historically, the technique of arbitration as a means to resolve disputes in Saudi Arabia has been underused. But, since no proper system for reporting cases of arbitration exists in the country, statistical information on number of such cases and nationality of involved parties is virtually unobtainable. Several arbitration cases comprising Saudi parties occur outside of the country -- foreign arbitration laws administer them (Zegers & Elzorkany 1; Janahi 43).
In the U.S., statutory framework for enforcing arbitration awards and arbitration agreements is provided by the American Arbitration Act (AAA). U.S. Supreme Court rulings in the past numerous decades see to it that the pro-arbitration directive of the AAA should be construed broadly and applied universally by federal as well as state courts. Parties looking for arbitral award or arbitration agreement enforcements in the nation need not worry themselves with regards to the prior opposition of judiciary in regard to arbitration or state arbitration decrees' failure to mandate arbitration agreement enforcement, as these will no longer hinder their ability of resolving disputes. Parties engaged in arbitration and bound by the Panama or New York Arbitration Convention must also take into account the possible advantages accorded by these Conventions (Salomon and de Villiers 1; Gibson 101).
Issues pertaining to the arbitration structure's application, jurisdiction, and effectiveness still call for greater focus and work. This paper will follow a critical analysis of arbitrators' rights and duties in the U.S. as well as Saudi Arabia, while at the same time exploring the manner in which cultural, legal and practice-related differences can provoke numerous negative views regarding the arbitration system in the country (Bin Zaid 5; Almutawa and Maniruzzaman 7).
Significance of the study
The significance of this study arises out of arbitration's import as a more peaceful and reasonable mode of international-trade-related dispute settlement. Foreign arbitration's utilization, in fact, gives rise to many issues that affect freedom of concerned parties, thereby, leading many parties to avoid seeking arbitration, and causing them to incur substantial financial damage (Rubenstein 42). Furthermore, different accession dates of the 1958 New York Convention (also merely called 'the Convention',) regarded as the most notable global effort towards recognizing and enforcing foreign arbitration awards, is a key factor that benefits consideration regarding how the Convention's provisions have been employed in the U.S. Also, major differences in laws and traditions between Saudi Arabia and USA makes a comparative research very valuable, since it reveals differences and draws attention to the weaknesses and strengths of each country's laws (Salomon and de Villiers).
Further, lack of comparative research on Saudi Arabia's international trade-related arbitration and the chasm in legal literature in the nation ordinarily accords great importance to such a research, enriching the legal literature database with an up-to-date comparative work (Ed Brunet 43). American legal literature, in contrast, presents multiple researches into the topic, addressing arbitration theory and debating on substantive necessities (e.g. need for public policy); it can, however, be maintained that no thorough, in-depth analysis exists of all substantive and formal requisites for implementing foreign arbitration award provisions. Also, no research work is available that compares courts' role in regard to implementing Saudi-U.S. foreign arbitration (Gary Born 56; Zegers & Elzorkany 34).
Statement of the problem
Swift adoption of the option of arbitration raises several questions and challenges concerning laws governing the use of arbitration, as well as those that govern performance of arbitration procedures (Malintoppi 354). One of the challenges is the difference in interpretation of different nations' legal systems by the parties involved, especially if they are foreign to the nations involved, rousing mistaken international and public views about those nations. This is what happens in case of Saudi Arabia; this can be ascertained through multiple prior researches performed by different researchers, or via thoughts voiced by prominent authorities (Bin Zaid 5; Buys 1). This necessitates a pressing need to analyze such provisions, for unearthing practical application in experienced courts in implementing foreign arbitration-award provisions.
Clearly, globalization in the commercial context has led to globalization in the legal context as well. There has been an increasing trend in parties turning to the peaceful method of arbitration for dispute resolution, (and to circumvent the rather expensive and long-drawn affair that is a facet of courtroom proceedings). This, as a result, has caused the legal community to realize the significance of appreciating arbitration. The method has many advantages: it ensures continuance of a healthy business relationship between parties involved in dispute, when it is seldom possible to continue business dealings with each other in the course of, or after, a legal case (Walde 205). Moreover, the parties are accorded various alternatives for ensuring application of a law selected by the parties themselves (Bin Zaid 187).
The growing adoption of arbitration for dispute resolution sparks enhanced interest in the technique by governments and lawmakers across the globe, aiming at systematizing laws governing arbitration processes. Hence, the UN conducted a number of international conferences and meetings, as well as numerous conventions organized, towards organizing resort to arbitration; examples of these include the Convention (pertaining to foreign arbitration awards' acknowledgment and execution) and the 1985 United Nations Commission on International Trade Law (UNCITRAL) (United Nations 4). In addition, on June 10, 1974, a historic signing of the 'Convention on the Settlement of Investment Disputes between Host States of Arab Investments and Nationals of Other Arab States' took place among Arab States. The Council of the League of Arab States settled on and sanctioned the Convention on the Enforcement of Judgments and Arbitral Awards September 14, 1952 (George 905; Almutawa and Maniruzzaman).
'The Economics of Justice' by Posner relates the concepts of efficiency and justice (Walde 205). In generic terms, as well as in the discussion on the philosophical roots of law's economic analysis, two assertions in the book: '(1) The legal rules of common law are actually effective; and (2) These rules should be effective are significant. The term effective in both of the above statements implies a maximization of society's readiness to pay (Orucu 31). Posner further insists that the specific manner of efficiency which must be supported by law is maximization of wealth, which offers the most sensible ethical grounds for social institutions' establishment and running (Bin Zaid197).
Bromley, in contrast, has employed the word efficiency for a neutral truth rule; he is of the view that efficiency remains nothing but the economist's (by whom it was recommended) value judgment. Some experts in the field of law however, have, applied efficiency in the form of a yardstick. For instance, in Fisch's 'Measuring Efficiency in Corporate Law: the Role of Shareholder Primacy' work, regulatory efficiency has been addressed (Ambrus 353); here, the efficiency is defined quite broadly, far removed from the standard (the standard being that shareholder wealth is used to define regulatory efficiency).
Fisch disputes this, citing her main reason behind contending the standard as: the interests of other stakeholders must also be accorded some value. Typically, the base for determining efficiency of a regulatory policy is shareholder wealth. In view of that, several empirical researchers evaluate laws' efficiency with regard to their impact on wealth of shareholders (Dahan and Simpson 133). According to Fisch, maximization of shareholder wealth is not compulsory, especially if done without regard for other stakeholders; this is established by current legal policy. Here, the chief idea derived is that efficiency is not simply emphasis on, or creation of, wealth as an efficiency measure. There are other elements involved as well, that are limited to the study's purpose of identifying whether or not any policy/law is efficient.
The research brings to light the debatable theory of economic analysis influencing the adoption of shareholder priority for determining effective regulatory policy, and infers that distinct justifications should be present for dependence on wealth of shareholders and the reasons for it dictating regulatory policies (Ambrus 354).
Research question, aim, and objectives
This study will deal with the following issues for recognizing and assessing the separate roles of U.S. and Saudi courts in the approval/rejection of arbitral award implementation:
1. What duties and rights do arbitrators in the Kingdom of Saudi Arabia have?
1. What duties and rights do arbitrators in the U.S. have?
1. What are the similarities and differences between American and Saudi Arabian laws of arbitration?
1. What is the reason behind the popularity of arbitration in commercial dispute resolution? What are its advantages over litigation? Precisely how does arbitration, in the global commercial trade setting, benefit both disputing parties?
1. What are the specific legal barriers that obstruct recognition or enforcement of an arbitration award made by a certain nation within another nation?
1. Which regional or international conventions have countries joined for overcoming the challenges defined in (4)? Of these, the 1958 New York Convention is the most significant; why?
1. How have USA and Saudi Arabia, adopted the Convention's provisions? Do we find any considerable textual differences in how these nations have adopted the… [END OF PREVIEW]
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