A Comparative Study of the Nature of Arbitration in Western Law, Iranian Law, and Imāmiyya Fiqh.

Abstract

Determining the exact nature of arbitration affects the scope of the applicable law on arbitration, the legal status of the international arbitrator, and the exercise of its independence in any national legal system in which the arbitrator operates. In response to the question of the legal nature of arbitration, several theories had been proposed in Western law. Among the theories focused on resolving the conflict between the field of public law and private law, some have given priority to the field of public law (judicial nature and the nature of privilege) and some to the field of private law (contractual nature). Yet, others have tried to reconcile between the two fields (hybrid or mixed nature). Among the theories that acknowledge the evolution of arbitration in the arena of world trade, some have highlighted the independence and transnational nature of arbitration (autonomous or self-governing nature), and some recent theories have focused on multiple sources of arbitration, including national and supranational ones (the nature of legal pluralism). Considering the lack of international arbitration in the past and the prevalence of arbitration only domestically and within the territory of a government, it can be stated that although the words of Imami jurists (the Fuqaha) appear to adopt a judicial nature for consolidation and arbitration, a closer examination of the jurisprudential (or fiqhi) expressions shows that in their opinion, the combined nature (judicial-contractual) rules over arbitration. Recruiting a descriptive-analytical method, the study revealed that the hybrid nature represents the precise legal and jurisprudential nature including domestic and international arbitration law.

Keywords

• nature of arbitration
• contractual theory
• mixed or hybrid theory
• concession theory
• jurisdictional theory
• autonomous theory
• theory of legal pluralism