The Saudi interpretations of capacity, public policy and awards being set aside in the country of origin in the refusal of arbitral awards under Article V of the New York Convention 1958, With Reference to French and English Legal Systems

Abstract

This thesis will examine whether Saudi Arabia's adoption of New York Convention 1958 will improve the recognition and enforcement of international arbitral award in the country, and consequently provide a better investment environment for non-Saudi investors. The examination will be carried out against Saudi conservative approach toward the grounds of refusal of international arbitral award listed in the Convention, with examples from French and English legal systems. The thesis is intended to provide an in-depth criticism and analysis on how the role of sharia in Saudi legal system has affected implementation of these grounds. However, the research will only cover three out of seven grounds for the refusal of recognition and enforcement of convention awards provided by Article V of the Convention. Namely, the thesis will cover the capacity, the enforcement of award that has been set aside the country of origin and the public policy grounds. These three Grounds are unlike the rest of the grounds, they significantly affected by the Islamic rules. The thesis concludes that the Saudi legislators should have codified the Islamic rules, whether by adopting one of the schools of thought to be the country official Islamic rules or by gathering all Islamic principles applied by Saudi courts under one Act. It also suggests a reconsideration of the judges’ requirements, as only Islamic background is not enough to make the judge able to deal with international treaties. Finally, the thesis emphasizes that Saudi Arabia shall fund researches and provide scholarships to its judges to study in different countries, in order to have better understand of the legal issues in different legal systems.