ARBITRATION
Introductory Provisions
DEFINITIONS
Definition
- The following words and expressions shall have the meanings assigned thereto, unless otherwise required by the context.
- IICRA: International Islamic Centre for Reconciliation and Arbitration as stated in the introduction above and all its branches.
- IICRA Headquarter: Main headquarter of IICRA, and/or any other approved headquarter by the Board of Trustees.
- Arbitration Rules: The Rules of the International Islamic Centre for Reconciliation and Arbitration, its appendices, and attachments.
- Claimant: The party(s) initiating the arbitration proceedings.
- Respondent: The party(s) against which the arbitration is initiated.
- Arbitrator: The arbitrator is the natural person designated to adjudicate the dispute through arbitration rules.
- Party or Parties: The arbitrator and /or the respondent, regardless of their numbers or when they were introduced, whether they are natural or legal persons.
- Dispute: Any disagreement that arises between the parties regarding their legal relationship, whether contractual or non-contractual.
- Arbitration Case: The claim filed by the Claimant at IICRA against the Respondent in order to settle his/her dispute.
- Arbitral Tribunal: A Tribunal either consists of a Sole arbitrator, or more than one arbitrator provided that the number of arbitrators appointed shall be uneven.
- Arbitration Basis: The basis according to which the dispute resolution is referred exclusively to IICRA.
- Charter: : It is the Arbitrator’s Charter, and Code of Ethics. Annex (2).
- Communications: It Includes, but not limited to, all notifications, letters, requests, pleadings, statements, notices, warnings, documents/memos, applications, suggestions, and any documents or exhibits, and attachments circulated in Arbitration proceedings.
- Duration of Arbitration: It is the period specified for the issuance of Final Arbitral Award in the dispute.
- Arbitral Award: The final, preliminary, partial, or interim Arbitral Award.
- Higher Shari’ah Committee: The Committee formed to perform its task according to the Rules of IICRA.
- Electronic Platform: E-platform developed by IICRA for the online settlement of disputes through Arbitration and Reconciliation pursuant to the provisions of E-rules – Annex (2).
- Day: Calendar Day.
- The words used in singular include in their meanings the plural and vice versa wherever the context so requires. Similarly, these shall be construed as gender neutral.
INTRODUCTORY PROVISIONS
Arbitration Rules
- IICRA shall administer the resolution of arbitration disputes conducted under these Rules which are not in conflict with the provisions of Islamic Shari’ah or derived therefrom.
- These rules are generally based on the updated UNCITRAL Arbitration Rules and are consistent with the international best practices in arbitration.
- Subject to the provisions of these Rules, the Arbitral Tribunal, IICRA and the High Shari’ah Committee, each within the limits of its duties, jurisdiction and competence, shall have the power with respect to exercise the arbitration which provides for equality between the parties and grant them an equal and full opportunity to present their claims, evidence, and defenses and the parties shall act in good faith, for the purpose of smooth conduct of Arbitral proceedings.
Scope of Application of the Rules
- These rules shall be applied to adjudicate all disputes submitted to IICRA under the Arbitration Deed.
- The agreement by and between the parties in writing to refer any dispute arising between them to IICRA through Arbitration Deed shall be considered their acceptance to abide by these rules without any exception, and this agreement shall prevent their dispute from being brought for settlement before any other body or in accordance with any other rules.
- The parties, by an agreement between them, shall be subject to these rules in effect on the date of submission of their Request for to Arbitration unless they expressly agree to the validity of any previous rules.
- Where the parties have expressly agreed to initiate or pursue the arbitral proceedings via e-platform, the arbitration Rules shall only be applied to such an extent that are not in conflict of the provisions of the e-platform Rules.
- Except for the provisions stipulated in Article (4/34), where any provision of these Rules in a particular matter or issue are in conflict with the provisions of the law applicable to the arbitration from which the parties cannot derogate, then the provisions of applicable procedural law in this matter shall be enforced.
Forms of Arbitration Deed and Its Effect
- In accordance with these rules, the Arbitration Deed at IICRA shall take one of the following forms:
- The Arbitration Clause agreed upon in writing by and between the contracting parties prior to the outbreak of the dispute in accordance with the provisions of Article (5) of these rules.
- The Arbitration Agreement agreed upon by and between the parties in writing after the outbreak of the dispute, in accordance with the provisions of Article (6) of these rules.
- Any legal Provisions or International Conventions that require and recommend dispute resolution through Arbitration.
- Any Fatwa or Resolutions of Jurisprudential Institutions or, Shari’ah Standards that recommend dispute resolution through Arbitration.
- The Arbitration Deed/ Basis in its form (a) and /or (b) shall preclude the jurisdiction of judiciary or any other body, and the parties shall be required to adjudicate their deputes under IICRA according to these Arbitration Rules.
- The Arbitration Deed shall in its form (c) and / or (d) direct the will of the parties to adjudicate their dispute under IICRA, requiring their written consent to abide by these rules in order to resolve the dispute.
Arbitration Clause
- Arbitration Clause is a written agreement between the parties to any legal, contractual or non-contractual relationship prior to the outbreak of a dispute, whereby any future dispute arising out of the aforementioned relationship shall be referred to IICRA for adjudication through the Arbitration Rules, and the Arbitration Clause shall be incorporated as a Clause of the original contract or it shall come independently out of it or in the form of a referral to another contract related to it, and that includes the Arbitration Clause in accordance with the Provisions of Article (16) of these Rules.
- The Arbitration Clause may determine the number of arbitrators, the language of arbitration, the seat of arbitration, the duration of arbitration, the applicable substantive law, and other arbitration procedures.
- IICRA recommends the incorporation of its model Arbitration Clause in contracts and agreements, according to the formula set forth in Annex (1). Article (1).
Arbitration Agreement
- The Arbitration Agreement is a written agreement between the Parties after the outbreak of the dispute between them that specifies the nature and details of the dispute, and the points of disagreement that the parties refer to be resolved under IICRA through these rules. The Arbitration Agreement may also include the data specified in Article (2/3) of these rules.
- IICRA recommends those wishing to resolve their dispute under IICRA to sign an Arbitration Agreement, according to the formula set forth in Annex (2/1).
Validity of Arbitration Deed
- The Arbitration Deed shall be in writing, clear and unambiguous, and IICRA shall consider the Arbitration Deed presented before it by the Claimant, to be valid unless it is proven otherwise.
- The Arbitral Tribunal shall have the exclusive jurisdiction to examine the validity and the scope of the Arbitration Deed presented before it and thus establishing the jurisdiction to adjudicate the dispute wholly or partially.
- Similarly, the Arbitral Tribunal does have the jurisdiction to accept or reject counterclaims and claim for a purpose of set-off.
- If the Arbitration Deed is found in the form of the Arbitration Clause, then it shall be treated as a term independent of the other contract clauses, and therefore, if the contract is rendered null, void or terminated for any reason whatsoever, then it shall not have any effect on the included the Arbitration Clause as long as such Arbitration Clause is valid in itself.
- The Arbitral Tribunal exercises its jurisdictions stipulated in paragraph (3/4) by issuing Arbitral Awards or in the final Arbitral Award.
Pleas as to the Non-Jurisdiction and Other Preliminary Objections
- A plea that the Arbitral Tribunal does not have the jurisdiction to adjudicate the dispute or with respect to the dismissal of the case, or a counterclaim or a claim for the purpose of a set-off, or relating to other preliminary objections, or in the defense to the counterclaim, shall be raised by the party before/to the Arbitral Tribunal in response to the Request for Arbitration (RFA) within the specified time limit, in accordance with the provisions of Article (14) of these rules, unless the Arbitral Tribunal sets other deadlines to raise those pleas.
- The Arbitral Tribunal shall have jurisdiction to decide on pleadings relating to its competency including, but not limited to, any objections concerning the existence or validity of the Arbitration Clause or Arbitration Agreement.
- The Arbitral Tribunal should directly decide on those objections either by a preliminary award, or it may proceed with arbitration and response to those objections in the Final Arbitral Award.
- If any issue regarding the non-jurisdiction of the Arbitral Tribunal is raised by the Respondent before the competent court, then the Arbitral Tribunal shall be free to either proceed with the arbitration, or to suspend the Arbitral proceedings until the court decides on non-jurisdiction thereof.
- In all cases, the Arbitral Tribunal may not suspend the arbitral proceedings once the door for pleadings is closed, and the case is reserved for the Final Award.
Capacity, Proxies & Amiable Compositeur
- Any natural or legal person may agree to arbitrate the dispute between the parties within the scope that enables him to dispose of his rights in accordance with the law governing his capacity/eligibility.
- The Arbitral Tribunal must ensure the capacity/eligibility of the parties when agreeing to arbitration and initiating the arbitral proceedings, and the Tribunal in this regard may also request for proxies that prove the authorization granted to the representative of any party, provided that the proxy is explicit and clear so that the representative is authorized to sign the arbitration deed and initiate all Arbitral proceedings.
- If the proxy and terms thereof are explicit, then it is not permissible to deviate from them to interpret them with an aim to know the will of the contracting parties. However, if it is subject for interpretation, then it is necessary to seek the mutual intention of the parties with the literal meaning of the words, while considering the nature of dealing in accordance with current practice in transactions. The Arbitral Tribunal may also consider the extent of adopting the theory of prima facie in conclusion and enforceability of the contracts.
- If the representative of any party when completing any of the arbitral proceedings exceeds the limits of his powers, then the arbitration shall not be null or void, but rather it shall be voidable in the interest of the principal, or enforceable until his approval is accorded whereas the principal may either waive the invalidity or authorize the Representative to act expressly or implicitly, and the other party to the agreement may not rebut or insist on the invalidity of the arbitration for this reason.
- In the event that the parties have agreed to conduct composition, the Arbitral Tribunal must ensure that the proxy produced by each party expressly stipulates all the powers that enable that party to initiate composition proceedings and agree to its provisions voluntarily.
Delegating Assistants
- 1) Subject to the provisions of Article (1) of these Rules, any party may delegate one or more persons whom it deems appropriate for its assistance and representation for the purpose of complying with the arbitration procedures, which include attending Meetings, signing documents, exchange of correspondence, and other arbitral proceedings in accordance with these rules.
- 2) The Arbitral Tribunal and other parties may at any stage during the arbitral proceedings, verify the proxy granted to the delegate and the Arbitral Tribunal Secretary shall adopt those proxies signed and approved by the Arbitral Tribunal and IICRA respectively and keep then in case file.
Notification of Communications and Calculation of Deadlines
- For the purpose of Arbitral proceedings, all communications from any party or Arbitrator shall be directed to the IICRA headquarter in the name of Chief Executive Officer (CEO) or the Case Manager appointed by IICRA. Each party shall be notified on the addresses designated by that party, and any update thereof for the purpose of notification. In the absence of such designation, the party shall be notified on the addresses incorporated in the contractual contracts, the subject matter of the dispute or any declared changes to these addresses.
- Communications from IICRA or Arbitral Tribunal addressed to the parties, or among themselves, shall be transmitted by any means of communication that provides or allows for a record of its transmission, and any communication shall be deemed to have been received if it is physically delivered to the addressee, or if it is delivered at his place of business, or his habitual residence, or his mailing address by registered letter, or by courier companies, or at his address specified in the Arbitration deed, or if it is sent to the addressee’s last-known place of business, or by any means of communication that provides a record of receipt thereof. This includes any fax number or e-mail which the parties previously used in their dealings with each other or which either party previously notifies the other party thereof in its communication.
- Any other method for the purpose of notification which IICRA or the Tribunal deems appropriate, and which provides the evidence of such notification, may be adopted, including the notification by publication in an official newspaper with national circulation that covers the headquarter of the concerned party.
- In all cases, the Arbitral Tribunal shall approve, in the Minutes of the Meetings and in communications, those addresses used in the notification.
- All communications by any party shall be supplied in a number of copies sufficient to provide one copy for each Arbitrator, plus one copy for each party. In the event that the number of Arbitrators has not yet been determined, then each party shall send five (5) copies to IICRA and an additional copy for Claimant and/or Respondent each.
- For calculation of periods and deadlines in accordance with these rules, their calculation shall begin from the day following the day on which the communication is received, and if the last day of such period or deadline is an official holiday at the workplace of recipient, the period or deadline shall extend to the following business day. This period and deadline shall include holidays or days-off falling during such period.
- The communications sent by e-mail shall be deemed to have been received on the date appearing on data confirming the successful delivery of the e-mail unless there is an error in the transmission.
- If the communications are served in accordance with the provisions set forth above, then it shall abate the right of the recipient to object to the lack of notification or knowledge concerning the subject of the communication. This shall not, at all preclude the conduct of the arbitral proceedings.
Arbitral Proceedings
COMMENCEMENT ARBITRAL PROCEEDINGS
Request for Arbitration (RFA)
- 1) Any party wishing to commence arbitration shall communicate to IICRA a written request (the “Request for Arbitration”) against the Respondent in order to adjudicate the dispute through Arbitration, and the Request shall include the following:
- A clear and explicit text of the Request for Arbitration, pursuant to these rules, with an indication of a copy of the arbitration deed/Arbitration Agreement.
- The names in full, nationalities, descriptions, and addresses, including telephone, fax number, e-mail address and other communication references of the parties to the extent possible as well as the contact details of the Representative of the Claimant (if any).
- A summarized description of the nature of the dispute and of causes of Request for Arbitration (RFA).
- A preliminary statement of the relief sought and, to the extent possible, an indication of any amounts claimed.
- A copy of the arbitration basis/deed, together with a copy of the contractual documentation and relevant communications.
- 2) The Request for Arbitration (RFA) may also include the following:
- f) A proposal as to the place of arbitration, and the language of arbitration.
- g) A statement justifying that the efforts for Reconciliation have been exhausted or not.
- h) Any comments to the applicable substantive law and applicable Shariah provisions.
- i) The name of the nominated arbitrator, along with his Curriculum Vitae (CV) and contact details.
- j) A copy of statement of claim related to the subject matter of the dispute.
- k) The party wishing to commence the Arbitration shall submit the Request for Arbitration (RFA) and the documents annexed thereto in a number of copies in accordance with the provisions of Article (4/11).
- l) The filing fee for the Request for Arbitration shall be made, in accordance with the provisions of the regulation for controlling the Arbitration and Reconciliation Expenses - Appendix (2).
Registration and Notice for Arbitration
- Within five (5) days from the date of filing the Request for Arbitration, IICRA shall examine it in order to ensure that it fulfills all the requirements stipulated in Article (12).
- Once the confirmation regarding the Request is made by IICRA that it fulfills all the requirements, then it shall be registered under a serial Arbitration Case number. In the event that these requirements are not met, IICRA shall notify the Applicant to complete the requirements within an additional time limits fixed by IICRA. Upon expiration of such period, IICRA may accept the Request and proceed with the arbitration respectively, provided that request is submitted to Arbitral Tribunal to consider its validity and impact of such incomplete data on proceedings. In addition, IICRA may also retain the Request without registering thereof, and without prejudice to the Applicants’ right to submit a new Request incorporating all required data.
- IICRA within three (3) days from the registration of Request shall appoint a case Manager from among its competent employees so as to commence the proceedings and communicate a copy of the Request and documents annexed thereto to the Respondent pursuant to the provisions of Article (11) of these Rules.
Answer to the Request for Arbitration (RFA)
- Within 30 days from being notified of the Request for Arbitration (RFA), the Respondent shall submit to IICRA an Answer to the Request which shall include the following:
- a) Its name in full, description and address, and contact details for itself and its representative (if any).
- b) Its preliminary defenses to the information set out in the Request for Arbitration.
- c) Statement of its opinion on discussing the Reconciliation efforts in case the Applicant proposes to resort to it.
- d) If the Arbitration Clause or Arbitration Agreement calls for parties’ nomination of arbitrators, the arbitrator shall be nominated, and his name and contact details must be mentioned in the Answer to the Request by the Respondent.
- The response to the Request for Arbitration (RFA) may also include:
- Any plea that an Arbitral Tribunal to be constituted under these Rules lacks jurisdiction, or if there is any objection on its part concerning the validity of the Arbitration basis/Agreement.
- Its opinion on the number of Arbitrators.
- Any comments as to the place of arbitration, and the language of the arbitration.
- A brief description of any counterclaims or claims for the purpose of set-off (if any).
- A request to introduce a third party as a Respondent pursuant to the provisions of Article (17) of these Rules.
- Its Statement of Defense.
- 3) The Respondent shall submit to IICRA its Answer to the Request in a sufficient number of copies, in accordance with the provisions of Article (11) of these rules.
- 4) IICRA may, upon the written request of the Respondent, grant him an extension of the time for submitting its answer, provided that application for such an extension is only for one time, not exceeding 10 days, unless otherwise decided by IICRA to grant an additional extension due to an exceptional circumstance that prevents the Respondent from submitting its response within the previously specified regulatory deadlines.
- 5) Upon completion of such regulatory deadlines, IICRA may proceed with Arbitration with available documents and statements even if the answer to the Request has not been submitted by the Claimant.
Claims and Counterclaims
- If the Claimant raises any claim, counterclaims, or claims for the purpose of a set-off, it shall be treated as the Request for Arbitration (RFA), and all necessary procedures shall be implemented for its registration and consideration in accordance with the Arbitration Rules.
- IICRA shall, within five (5) days from the date of filing such claims, counterclaims, or claims for the purpose of a set-off, notify the Claimant of such submission.
- IICRA shall grant the Claimant a period of fifteen (15) days to respond to those claims, counterclaims, or claims for the purpose of a set-off raised by the Respondent. However, the Claimant may also produce before the Arbitral Tribunal in the preliminary meeting an explanatory statement in the response to those aforementioned claims, counterclaims, or claims for the purpose of a set-off filed by the Respondent.
Multiple Contracts and Consolidation of Arbitration
- Disputes arising out of or in connection with more than one contract may be adjudicated in a single Arbitration, similar to the disputes related to Islamic financial transactions that include more than one contract, irrespective of whether such arbitrations are made under one or more Arbitration Agreement.
- Any party may, prior to the constitution of Arbitral Tribunal submit a request to IICRA to consolidate two or more Arbitrations into a single Arbitration. However, any party may also submit the Request for Consolidation to Arbitral Tribunal after its constitution. In all cases, the Request for consolidation must include the serial number of the arbitration cases, the subject matter of the Request, a summary thereof, and the legal basis for the request for consolidation.
- To accept the Request for Consolidation of Arbitrations, one of the following considerations are required:
- Agreement of the parties to the dispute to a single arbitration to which the other arbitrations are to be consolidated in accordance with these Rules.
- that the arbitration basis is compatible with all arbitrations, in addition to that the Arbitrations arise from the same valid legal relationship, or that those contracts arising out of or in relation to the main contract and/or subordinate contracts thereof, or the claims arising out of all interrelated legal transactions.
- When arbitrations are consolidated by the Arbitral Tribunal, they shall be consolidated into the first registered arbitration.
- Consolidation of Arbitrations shall not prevent the parties from nominating and constituting an Arbitral Tribunal, pursuant to the provisions of these Rules.
Joinder and Intervention
- 1) The Arbitral Tribunal may, after approval from IICRA, permit the joinder or intervention of one or more parties to the same Arbitration as a Claimant or Respondent, based upon the request submitted by one of the parties.
- 2) The date, on which the request for joinder is received by IICRA, shall be deemed to be the date of the commencement of arbitral proceedings against that Joined Party or Intervening party.
- 3) The Request for Joinder or intervention shall be submitted prior to the constitution of the Arbitral Tribunal to the Higher Shariah Committee, copies thereof to the parties, and a copy to the joined party.
- 4) The parties, including the joined party, reserve the right to answer to the Request for Joinder, and likewise they also have the right to answer to the Request for Intervention, within a maximum period of seven (7) days from the date of receiving the request for Joinder or Intervention, or IICRA decides to grant any extension for such period.
- 5) The Higher Shariah Committee may, by a reasoned decision, accept or reject the Request for Joinder or Intervention without prejudice to the power of the competent Arbitral Tribunal after its constitution to reconsider those requests for Joinder or Intervention, in its capacity as having jurisdiction.
EMERGENCY ARBITRATOR
Rules & Procedures
- A Party seeking the implementation of the urgent, interim or conservatory measures prior to the transmission of the Arbitration file to the Arbitral Tribunal, may file a request for the appointment of an Emergency Arbitrator, to IICRA and send a copy thereof to the parties.
- IICRA shall examine that request within two (2) days to ensure that it contains all information related to the Request for Arbitration (RFA) pursuant to the provisions of Article (12), in addition to:
- A description of the circumstances giving rise to the submission of the Request for the appointment of an Emergency Arbitrator.
- A statement of urgent, interim and conservatory measures sought.
- If the Request is accepted, IICRA shall directly appoint an Emergency Arbitrator. However, if the request is rejected by IICRA, the parties shall then be duly notified of the rejection and the reasons thereof.
- IICRA shall grant the parties a period of two (2) days from the date of being notified of the appointment of an Emergency Arbitrator, to object to this appointment with the reasons justifying such objection and challenge.
- Any challenge to the appointment of an Emergency Arbitrator shall either be accepted or rejected by IICRA. In case, IICRA accepts the challenge, the Emergency Arbitrator shall then be replaced in the same manner in which he was appointed.
- The applicant of the urgent, interim or conservatory measures may require to provide a specific guarantee in connection with measure with the center or with any other body approved by the Emergency Arbitrator and IICRA, with the aim of ensuring compensation for the damages caused by the precautionary and urgent measure to any party, if it is granted.
- The Emergency Arbitrator shall have the authority vested in Arbitral Tribunal. Likewise, he shall bear the same duties and responsibilities as does the reputed tribunal, including those imposed by the provisions of Codes of Ethics, taking into account the urgency of his mission.
- The Emergency Arbitrator shall use the available means of communication appropriate for carrying out his mission and rightly so, he may use IICRA E-Arbitration Platform.
- The parties may agree to take other measures for the execution of such interim, precautionary, or urgent measures; Similar to have recourse to the competent Court.
Award of Emergency Arbitrator
- The Award shall be issued within no later than seven (7) days from the date on which the case file was transmitted to the Emergency Arbitrator, and this time limit shall be extended only for once pursuant to a reasoned request from the Emergency Arbitrator before specified deadline.
- The Emergency Arbitrator’s Award shall be reasoned and issued in the form of an Interim Arbitral Award.
- The parties shall implement the Emergency Arbitrator’s Award from the date it is issued without delay.
- The parties shall carry out or implement the Emergency Arbitrator’s Award from the date it is issued without delay, and the parties also irrevocably waive their right to any form of appeal, review or recourse to any court or judicial authority with respect to such Award.
- The party in whose favor the Emergency Award is issued shall file a substantive case related to the subject matter of the Award or the urgent, interim or conservatory measures before the competent Court or IICRA within no later than seven (7) days from the date, the said Award is issued, and such period can, upon request of the concerned party, be extended only for once. In all cases, such Award shall be deemed null and void upon completion of such time limits.
- The Emergency Arbitrator may, upon request of any party, or his own initiative, amend or vacate the Interim Awards for good cause.
- The Arbitral Tribunal competent to hear the dispute may adopt, modify, or vacate the Emergency Arbitrator’s Award.
CONSTITUTION OF TRIBUNAL
Determination of Number of Arbitrators
- The Arbitral Tribunal shall be composed of uneven number of Arbitrators as has been agreed by the parties. If no agreement between them is made regarding the number of Arbitrators, the Tribunal shall consist of a Sole Arbitrator, unless otherwise determined by the Supervisory Committee that a Tribunal consisting of three (3) or more Arbitrators is appropriate because of the scale, complexity, or other circumstances of the dispute in order to cover all Shari’ah legal and technical aspects of the Arbitration Case.
Right to Nominate Arbitrators
- If it is decided that the dispute shall be resolved by a Sole Arbitrator, the parties may agree to nominate a Sole Arbitrator within seven (7) days from the date of notifying the Respondent of the Notice for Arbitration. However, if the parties do not agree to nominate a Sole Arbitrator within such period or in case, one of the parties designates IICRA to nominate a Sole Arbitrator, the appointment shall be made by IICRA within five (5) days and the parties shall be duly notified of such nomination and Curriculum Vitae (CV).
- If three (3) or more Arbitrators are to be appointed to adjudicate the dispute, the parties shall, by their agreement, have the power for nomination, and each party shall nominate one Arbitrator from its side, and IICRA shall then grant the two appointed Co-Arbitrators a period of seven (7) days to nominate an Arbitrator to preside over the Arbitral Tribunal. However, if the appointed Arbitrators fail to agree upon such nomination within the said time, the nomination of presiding Arbitrator shall then be made by IICRA within no later than five (5) days and the parties and other co-Arbitrators shall duly be notified of the nomination.
- If the parties have previously agreed that each party shall appoint one Arbitrator from its side, then that agreement shall be interpreted or treated as Arbitrator’s Nomination Agreement not the Appointment Agreement.
- If any Party fails to make such nomination from its side, either in the Request for Arbitration or in the statement of defense within the specified time limits for its submission, or if IICRA refuses to replace the Arbitrator nominated by any party, IICRA in such case shall grant an additional opportunity and request a new nomination to be made by that party within no later than five (5) days from the date of receiving IICRA’s request in this regard.
- Where no nomination is made by either party upon completion of such deadlines set forth in Paragraph (4), that party shall implicitly and irrevocably waive all its right to nominate an arbitrator, then the nomination on behalf of that defaulting party Arbitrator shall be made IICRA.
- Any party may raise an objection to the nomination of Arbitrator by submitting a written statement specifying the reason for such objection within seven (7) days from being notified of that nomination. As such, the reasons for the objection may include what is stipulated in the applicable Shari’ah Regulations regarding the nomination of a woman as an arbitrator.
Directory of Arbitrators & Experts
- IICRA develops its updated list of Arbitrators & Experts with vast expertise, and independence of opinion, and those willing to abide by the Provisions stipulated in the Codes of Ethics Appendix (2).
- None of the parties is bound to nominate an arbitrator from the said list of Arbitrators and Experts.
Power to Appoint Arbitrators
- IICRA shall have the power to appoint arbitrators, taking into consideration the agreement of the parties and data of the appointed arbitrators and the provisions of Article (21) of these rules.
- IICRA may by a reasoned decision, following the consideration of the Request for objection stipulated in Article (21/5), refuse to appoint any nominated arbitrator.
- IICRA, while appointing the Arbitral Tribunal, shall give due consideration to the nature and circumstances of the dispute, the nationality, location, and languages of the parties, and (if more than two), the number of parties, taking into consideration, where the parties are of different nationalities, a Sole Arbitrator or the Chairman of the Tribunal shall not have the same nationality as any party, unless the parties who are not of the same nationality as the arbitrator all agree otherwise. The person holding the nationality of two or more states shall be deemed a citizen of each of each state.
- Any party, within three (3) days from the date of being notified of the constitution of the Arbitral Tribunal, has the right to raise an objection by submitting to the Supervisory Committee a Request for Objection to such formation outlining the reasons for the objection.
- The Supervisory Committee shall, within two (2) days, consider the objection request, the subject matter of the Paragraph (4), and it may appoint or reappoint one or more arbitrators from amongst the members of the Tribunal, and its decision in this regard shall be final and binding upon parties.
Nomination & Appointment of Arbitral Tribunal Secretary
- The Arbitral Tribunal in co-ordination with IICRA and by using records thereof, shall appoint a qualified person to carry out the duties of Arbitral Tribunal Secretary.
- The Secretary shall be subject to the provisions relating to the resignation, challenge, revocation, and replacement of the Arbitrator as determined by these rules, and which the Tribunal deems appropriate.
- The Secretary shall be subject to the Standards related to his mission stipulated in the Charter, as well as to his responsibilities related to the professional aspects of his mission which shall be monitored by the Arbitral Tribunal in terms of ensuring the integrity of the Arbitration proceedings, drafting Minutes, archiving documents, and maintaining the confidentiality of the communications and information.
- IICRA shall determine the financial rights of the Secretary, pursuant to the provisions of the Regulations for Controlling Arbitration and Reconciliation Expenses - Appendix (1).
Arbitrator’s Mission Contract
- IICRA shall, with the designated Arbitrator, sign the mission contract prior to the transmittal of the case file which shall include the following:
- Name and contact details of the Arbitrator within the framework of carrying out his mission.
- Express agreement by the Arbitrator to resolve the dispute.
- Undertaking & conformation by the Arbitrator to abide by these Rules as well as the Regulations stipulated in the Code of Ethics.
- Determination of the Arbitrator’s remunerations, based on the regulation for controlling Arbitration and Reconciliation expenses – Annex (1).
Resignation of Arbitrator
- 1) If an Arbitrator gives a written notice expressing his desire to resign as arbitrator to IICRA, as he realizes that he is unable or unfit to serve or carry out his mission, or if any arbitrator dies, IICRA shall revoke that arbitrator's appointment, provided that it appoints a substitute Arbitrator, pursuant to the provisions of Article (28) of these rules.
Revocation & Challenge of Arbitrator
- If it is evident that any arbitrator acts in deliberate violation of the provisions of these Rules or breaches the terms of the Mission Contract or, Regulations set forth in Code of Ethics, the Higher Shari’ah Committee may declare him incapable or unfit to perform his duties, and as such is entitled to decide on his removal.
- Any party may, within seven (7) days from the date of becoming aware of circumstances calling for revocation and challenge of any member of the Arbitral Tribunal in charge of resolving the dispute, shall send to IICRA, the Arbitral Tribunal and all other parties a notice for its challenge.
- Any party may challenge an Arbitrator it has nominated if circumstances exist after the appointment that give rise to justifiable doubts as to impartiality or independence of that challenged Arbitrator.
- If the challenged Arbitrator does not withdraw or all parties do not agree to the challenge within three (3) days from the date of its fifing, the Higher Shari’ah Committee within next two (2) days may decide of revocation and challenge.
- The Higher Shari’ah Committee can decide on any criminal prosecution or civil claim that IICRA may take against the challenged or removed arbitrator, due to his deliberate acts and omissions of performing his duties in violation of the provisions of his mission contracts and regulations/controls defined under the Code of Ethics, taking into account the gravity of the damage caused by the said Arbitrator to the Arbitration and the parties.
Replacement of Arbitrator
- 1) If the Arbitral Tribunal, the Higher Shari’ah Committee, and the parties are convinced that the arbitrator is incapable of performing his duties, he shall be replaced.
- 2) The arbitrator shall be replaced in the same manner he has been appointed, unless the parties agree, and the Arbitral Tribunal decides otherwise.
- 3) Following the replacement of Arbitrator, the Tribunal shall be reconstituted in the arbitration, and that reconstituted Tribunal may hold one or more hearings, unless the substitute Arbitrator agree with other members of the Tribunal otherwise.
ARBITRAL PROCEEDINGS
Handover of the File to the Arbitral Tribunal
- IICRA shall hand over the case file to the constituted Arbitral Tribunal, as soon as the Mission Contracts are signed with the members of the Tribunal, pursuant to the provisions of Article (25).
- The date on which the handover or transmission is made to the Tribunal shall be considered the date of the commencement of Arbitration period.
Preliminary Meeting
- Within ten (10) days from the date of the transmission of the case file to the Arbitral Tribunal pursuant to the provisions of Article (29) of these rules, the Tribunal shall fix a date for the preliminary meeting and notify all parties through the Secretary, of the time and venue thereof.
- The Tribunal shall, in the Preliminary Meeting, establish the provisional timetable for the procedures and deadlines for exchange of communications and holding Hearings within the Arbitration period, and the Tribunal may, at any time, edit the details of that timetable, in accordance with the requirements of performing its duties or if so, agreed upon by the parties later on.
- The exchange of communications, submission of documents, statements, pleadings, and any complementary procedures that may be agreed upon by the parties could also be addressed in the Preliminary Meeting.
Exploring Means of Amicable Settlement
- The Arbitral Tribunal, in the Preliminary Meeting, should inquire of the parties about their desire to discuss further ways of amicable settlement that may lead to the suspension of Arbitral proceeding.
- If the Arbitral Tribunal finds out that the parties have an explicit desire to discuss such efforts requiring the suspension of Arbitral proceedings, the Tribunal then shall decide on suspension of the proceedings and grant the parties a specified period to discuss the means for amicable settlement, provided that such period does not exceed thirty (30) days Or, any subsequent extension of that period, pursuant to the Reconciliation Rules.
- The consent of the parties for discussing the ways of amicable settlement leading to the suspension of Arbitral Proceedings, shall not be considered a waiver from their side of the Arbitration Clause or the Arbitration Agreement, so that if such efforts fail for any reason whatsoever, or the period granted for the discussion thereof, gets expired without signing of a settlement agreement for dispute resolution, then the jurisdiction of the Tribunal shall be restored in order to resume and complete the Arbitral proceedings from the stage it was suspended or as the Arbitral Tribunal may deem appropriate.
Determination of Seat of Arbitration
- If the parties do not agree in writing to determine the seat of arbitration, the Arbitral Tribunal shall determine the Headquarter of IICRA to be the seat of Arbitration, in view of the details relating to the Arbitration case and the requests of the Parties in this regard.
- The Arbitral Tribunal may, after consultation with the parties, hold the Arbitration Hearings or Meetings at any place it deems appropriate, or via IICRA e-platform. In case, the place of holding the Hearings differs from the seat of Arbitration, the Arbitral Award shall be deemed to have been made at the seat of Arbitration as specified under the provisions of paragraph (1).
Language of Arbitration
- If the parties, prior to the constitution of the Arbitral Tribunal, do not agree on the language of Arbitration, the Arbitral Tribunal shall commence in the language adopted when drafting Arbitration Clause or the Arbitration Agreement.
- Upon its constitution, the Tribunal shall have the power and authority to determine the language of the arbitration having regard to any observations of the parties about the Arbitration language.
- The Arbitral Tribunal may decide that all or some of the documents submitted in a language other than the Arbitration language must be translated.
- IICRA may request the Tribunal to issue Final Arbitral Award accompanied by a copy of a translation thereof in Arabic language, in case, the Hinger Shari’sh Committee finds that the Draft Arbitral Award stipulates some legal terms whose interpretations and connotations may not be understood in a language other than Arabic.
Applicable Substantive Law
- The Arbitral Tribunal, as agreed upon by and between the parties, shall determine the substantive law to be applied in order to resolve the dispute, pursuant to the provisions of the Terms of the Contract, the subject matter of the dispute, taking into account the trade practices applicable to the transaction.
- In the absence of any such agreement between the parties, the Arbitral Tribunal shall apply the substantive law which it determines more relevant and appropriate, and it shall also state, in the Preliminary Award or in the reasoning of Final Arbitral Award, the reasons for determining and choosing such law.
- The Arbitral Tribunal shall apply the principle of amiable compositeur, or the principles of equity and justice to resolve the dispute, only if the parties have expressly agreed in writing upon it.
- In all cases, the following provisions when challenging the Applicable Substantive Law shall be excluded.
- Provisions that violate the Principles of Islamic Shari’ah
- Provisions relating to conflict of laws unless the parties expressly adhere to such provisions.
Applicable Shari’ah Provisions
- 1) The Arbitral Tribunal and the parties shall determine the legal provisions applicable to the merit of the dispute, based on what has been stipulated in Holy Qur’an and Sunnah of Prophet Mohammad (PBUH).
- 2) Without prejudice to the provisions of Paragraph (1), the legal provisions stipulated in the viewpoints of various school of Islamic thought, or followed among mainstream Scholars, or in the Shari’ah standards issued by the Accounting and Auditing Organization for Islamic Financial Institutions (AAIOFI), or according to the rulings of Islamic Fiqh academies, relevant to the subject matter of the dispute shall be applied with an agreement between the parties and approval from the Arbitral Tribunal.
- 3) If the Parties do not agree on any such applicable legal provisions, or if it becomes evident to the Tribunal that there’s discrepancy with the legal provisions, the Tribunal then shall, with its own discretion, determine the legal provisions that are closest to the justice, more appropriate and relevant to the arbitration, to be applied in a manner that do not contradict the explicit provision of Holy Qur’an and Sunnah of Prophet Mahammad (PBUH).
- 4) The Arbitral Tribunal shall state, in the Preliminary Award or in the reasoning of Final Arbitral Award, the reasons for determining and choosing such Applicable legal Provisions.
Supplementary Procedural Law
- The parties may, having received an approval from IICRA and the Arbitral Tribunal, agree upon a complementary procedural law to cover a number of issues not governed by these rules, provided that:
- It does not contradict with the provisions of Islamic Shari’ah, pursuant to the provisions of Article (35) of these Rules.
- It does not contradict with the powers of IICRA and the Higher Shari’ah Committee, as specified in these rules.
- The Arbitral Tribunal shall apply the appropriate provisions that do not conflict with the provisions of Islamic Shari’ah, in order to sort out all such issues.
Terms of Reference (TOR)
- If the Arbitral Tribunal, according to the details of the Arbitration, decides on drawing up a document defining its Terms of Reference (TOR), or if the parties agree to do so, the Arbitral Tribunal shall, after holding the preliminary meeting, draw up a draft TOR, in order to send it to the parties to express their opinion followed by the signature thereon by them, provided that the TOR includes the following particulars.
- the names and addresses of the parties, their representatives, nationalities, and contact details.
- the chosen domicile for receiving and delivering the communications and e-mail addresses.
- description of the nature of dispute.
- the powers of the Tribunal agreed upon by the Parties.
- the names of members of the Tribunal, and their contact details.
- Determination of the language of Arbitration, the seat of Arbitration, the applicable substantive law, and the applicable legal provisions, as well as other procedures for the conduct of the Arbitral proceedings.
- the Arbitral Tribunal shall grant all parties, the sufficient opportunity to sign the final TOR. In case one of the parties refuses to sign the said TOR, it will not affect the course of Arbitral proceedings, and in all the cases, the Tribunal shall sign the TOR with the other parties and direct the Arbitral Tribunal Secretary to notify the other parties of a copy thereof.
Extension and Reduction of Deadlines
- The parties may, prior to the constitution of the Arbitral Tribunal and post receiving an approval from IICRA, agree to extend or shorten the regulatory deadlines, including the Arbitration period specified in the Arbitration Clause or in the Arbitration Agreement. The new deadlines agreed upon by the parties shall be subject to approval of the Arbitral Tribunal once it is constituted.
- The Arbitral Tribunal shall have the authority to extend or shorten such deadlines provided by the agreement of the parties, or these Rules for the purpose of proceeding with the arbitration, provided that the parties are given an equal and reasonable opportunity to present their defenses and arguments.
- IICRA may extend or shorten any regulatory deadline if it decides that it is favorable to do so in order that the Arbitral Tribunal could fulfill its responsibilities in a manner that enables them to comply with the Provisions of the Codes of Ethics.
Amendment to the Statement of Claim or Defense
- Either party may, during the course of Arbitral proceedings and at any time before the closing of the proceedings, amend or supplement its claim, counterclaim, or defense.
- The Arbitral Tribunal may refuse to accept any amendment made to the original claim, counterclaims, or defenses, having regard to the nature of such amendment, the delay in making it, the stage of the Arbitration and/or the prejudice that may be caused to the other party by such amendment and/or taking into account any other relevant circumstances that Tribunal deems appropriate.
Further Written Statements
- 1) The Arbitral Tribunal may, in its discretion, allow further statements to be made, in addition to the Statement of Claim and Statement of Defense, and identify the party which shall be required to present further written statements and fix the periods of time for communicating such further submissions, provided that the Tribunal allows other party as well to respond and comment on such additional statements.
Exchange & Inspection of Communications
- The Arbitral Tribunal may exchange communications, in any manner that provides recorded evidence of the transmission, including e-communications, in order to avoid any delay in the proceedings and unnecessary expenses.
- The Arbitral Tribunal may, at the request of either of the parties, decide to review the original communications, documents, and information related to the subject matter of the Arbitration.
Emergency, Conservatory & Interim Measures
- Unless otherwise agreed by the Parties in writing upon the specific provisions regarding the Interim and conservatory measures, either party may, after the constitution of the Arbitral Tribunal, submit a written request in order to issue an Interim Arbitral Award to enforce conservatory or emergency measures.
- The request for granting an interim measure should be satisfied/justified according to one of the following considerations:
- Harm not adequately reparable by an Award of damages is likely to result if such measure is not granted, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed.
- There is a reasonable possibility that the subject matter of the dispute shall be decided in favor of the party requesting the measure.
- Any interim measure falls within the scope of the Interim or conservative measure, by which, at any time prior to the issuance of the Arbitral Award, and the Tribunal orders a party for example to:
- Maintain or restore the status quo, until the dispute is resolved.
- Take action that would prevent, or refrain from taking any action that is likely to cause current or imminent harm or prejudice to Arbitral process itself.
- Ensuring a means of preserving assets out of which a subsequent may be satisfied or executed.
- Preserve evidence that may be relevant and material to the resolution of the dispute.
- The Arbitral Tribunal may make the granting of such measures subject to appropriate security being furnished by the requesting party prior to its authorization.
- The parties are obliged to implement the preliminary Award containing interim measures as soon as it is issued without any delay.
- The Arbitral Tribunal may modify, suspend, or terminate an interim measure, it has granted, on its own initiative, or upon the request of the either party or upon prior notice to all the parties of such modification, suspension, or termination.
- In all cases, the decision for any such conservatory or emergency measures shall not affect the discretion of the Arbitral Tribunal in issuing any subsequent Award, even if it contradicts the Interim measure that was granted.
- A request addressed by a party to a competent judicial authority for interim, conservatory or emergency measures, shall not be deemed incompatible with, or a waiver of, the Arbitration Agreement. The party addressing any such request and measures shall, within no later than three (3) days from the date of communicating the request to the Judicial Authority, notify IICRA and Arbitral Tribunal.
Rules of Evidence & Defense
- The Arbitral Tribunal shall have a discretionary power to grant both, the Claimant and Respondent an adequate opportunity to present all their defenses and arguments, unless the Arbitral tribunal decides otherwise, each party shall have the burden of establishing facts relied on to support its claim or defense through confession, cross-examination, testimony, writing, evidence, presumptions, inspection, expertise, and other means of evidence and defense.
- The Arbitral Tribunal shall have a discretionary power to determine the rules of evidence to be adopted, including the validity of the presumptions/statements provided by either party, or their relevance to the Arbitration case.
- The Arbitral Tribunal shall as well determine the time, manner, and form in which such assumptions should be exchanged between the parties and produced before the Arbitral Tribunal.
- At any time during the course of Arbitral proceedings, the Arbitral Tribunal may, at the request of a party or on its own initiative, order a party to produce such documents or other evidence within the regulatory deadline as the Tribunal deems appropriate.
- The Arbitral tribunal may order a party to make available to the Tribunal or to an expert delegated by it or to the other body determined by it, any property in its possession or control of such party for inspection.
Testimony of Witnesses
- At least ten (10) days prior to the date of the hearing, each party resorting to the testimony of witnesses shall disclose to the Arbitral Tribunal and the parties the facts to be established by the witnesses, the identity and address of the witness it intends to call, the subject matter of his testimony, its relevance to the Arbitration case, and the languages in which such witness will give their testimony.
- If the Arbitral Tribunal considers that such facts are to be established by the testimony, it shall then decide to conduct a hearing for the testimony of the witnesses or do so in the pre-determined Meeting to consider the arbitration case, and further, it shall direct the requesting party to bring the witness in and make available an interpreter as well in case the witness is not proficient in Arbitration language.
- The arbitral tribunal has a discretionary power to decide on the appearance of any witness, on the grounds of avoiding assumption duplication or lack of relevance to the Arbitration case, or for any reason that Arbitral Tribunal deems appropriate.
- The testimony of witnesses may, as determined by the Arbitral Tribunal, be submitted in written form, whether by way of signed statements, sworn affidavits or otherwise, in which case the Tribunal may make the admissibility of the testimony conditional upon the witnesses being made available for oral testimony. Also, the Arbitral Tribunal may actually hear and attend the witnesses via IICRA e-arbitration platform for hearing testimony, or through any other means of audio-visual communications provided that such means of communication allows the Tribunal to verify the identity of the witnesses and validity of their testimony.
- The Arbitral Tribunal shall require witnesses to swear an oath before the Tribunal before giving a testimony in accordance with his religion and the applicable law.
- A witness giving oral evidence shall be questioned under the supervision or control of the Arbitral Tribunal which may, either on its own initiative or upon the request of either party, put any question on the witness it deems appropriate. The Tribunal must also respond to the Request addressed to it by either party for questioning the witness unless when it deems that the questions are unproductive or irrelevant to the subject matter of the dispute.
- In case of multiple witnesses in the Arbitration, the Tribunal shall hear the testimony of each of them individually in the presence of the parties and in the absence of the rest of witnesses whose testimonies have not yet been heard. The witness should disclose his full name, age, profession, place of residence and his contact with the parties (if any) after verifying his identity.
- As for the proof of witnesses’ testimony, a man’s testimony shall be equivalent to the testimony of two women, unless the Tribunal decides otherwise in accordance with the nature of testimony, and circumstances thereof.
- Each Party shall be responsible for all the practical arrangements, availability, and cost of any witness it intends to call, and in this regard, it may also request the Arbitral Tribunal to include such cost in total Arbitration costs.
Hearings
- The Arbitral Tribunal, at the request of either party, shall hold a hearing for the presentation of evidence by the parties, and/or witnesses, and/or experts, and for their arguments.
- In the absence of a request, as referred to in paragraph (1), the Arbitral Tribunal shall decide on its own initiative whether to hold such hearing or to proceed with the Arbitration on the basis of documents and communications alone.
- When the Arbitral Tribunal decides that a hearing is to be held as to hear the witnesses, it shall direct the Arbitral Tribunal Secretary to notify the parties, witnesses, and translators (if required), to attend the hearing, seven (7) days prior to the date of said hearing, provided that the notice includes the place and time thereof.
- All hearings shall be held in private unless the parties agree otherwise.
- If either party, although duly notified, fails to appear without valid excuse, the Tribunal shall have the power either to proceed with the hearing, or to postpone or cancel it.
Confidentiality
- Pursuant to the principle of confidentiality as provided for in the Codes of Ethics, the Parties, Arbitrators, Emergency Arbitrators, Secretaries, Experts, Witnesses, and any person appointed by the Arbitral Tribunal shall keep confidential all matters related to communications, hearings, procedures, and Arbitral Awards.
- The parties may agree upon not to comply with confidentiality of such principle, or disclosure may be required of one of the parties by legal obligation to protect, or pursue a legal right, or to enforce or challenge an Award in bona fide legal proceedings before a State Court or other competent judicial authorities.
Appointment of Expert
- The Arbitral Tribunal may appoint one or more independent Experts to report to it on technical issues designated by the Tribunal under the Preliminary Arbitral Award, whereby the Expert shall be appointed, and the nature of the assigned tasks, his remuneration, and periods of time to carry out the mission shall be determined.
- The Secretary shall directly communicate to the parties, a copy of the preliminary Arbitral Award whereby the expert is appointed, accompanied by a copy of the curriculum vitae (CV) of the appointed expert.
- The Expert must undertake to exercise his functions as defined in the preliminary Arbitral Award and accordingly comply with IICRA Rules and Regulations.
- Any party may object to the appointment of the Expert on the grounds of his qualifications, or a statement of his impartiality, within no later than three (3) days from the date of being notified of the preliminary Arbitral Award under which the Expert was appointed, or from the date of being aware of the reasons for such objection, and the Arbitral Tribunal may consider the objection request and promptly decide whether to accept or reject such objections within five (5) days from the date of its submission. The Tribunal’s decision in this regard shall be final and binding upon the parties.
- The Arbitral Tribunal may require a party to provide the Expert with any relevant information or documents, or enable him to access to the goods, property or sites for inspection or examination. Any dispute arising between a party as to the relevance of such information, documents, or goods to the subject matter of the dispute and assigned tasks shall be referred to the Tribunal for decision.
- Upon receipt of the Expert's report, the Tribunal shall communicate a copy thereof to the parties, which shall be given the opportunity to express, in writing, their opinion on the report. A party shall also be entitled to examine any document relied upon by the Expert in the issuance of such a report.
- The parties shall have the equal opportunity to question the Expert during such hearing pursuant to the Provisions of Article (45) of these Rules. At this hearing, the parties may require the expert witnesses to testify on the points at issue.
- The opinion of any Expert witness shall be subject to the Tribunal’s discretionary power of assessment of such testimony in the context of all the circumstances of the Arbitration case, unless the parties have agreed that the expert's determination shall be s shall be final and conclusive in respect of those issues.
- The remunerations and expenses of the expert shall be determined and paid off as explained in the preliminary Arbitral Award related to his appointment, or, under the subsequent Arbitral Award issued by the Tribunal in this regard, based in the Regulations for controlling the Arbitration & Reconciliation Expenses Annex (1).
New Claims & Their Withdrawal
- A party may not file any new claims or counterclaims after submission of the statement of Claim made by the Claimant, or post submission of the statement of defense, counterclaims, or request for the purpose of a set-off made by the Respondent unless otherwise explicitly agreed by the parties or authorized to do so by the Tribunal which shall consider the nature of such new claims and the stage of Arbitration, relevant circumstances to the Arbitration as well as the potential damage that may inflict upon the parties by accepting such submissions.
- Neither new or different claims, nor any amendment or change in the actual amount of the Arbitration or in the amount of counterclaims shall be considered.
- If the Claimant withdraws its claim or the Respondent withdraws its counterclaim or request for the purpose of a set-off, the Tribunal then shall terminate the arbitral proceedings and issue the Final Arbitral Award in this regard.
Closure of Proceedings
- The Tribunal shall declare the proceedings closed when it is satisfied that the parties have had adequate opportunity to present their submissions, evidence, and arguments.
- The Tribunal may, upon the request of a party, when it considers it necessary, given the exceptional circumstances, decide to re-open the proceedings it declared to be closed at any time before the final Award is issued.
- Following the closure of the proceedings, the Tribunal shall, after deliberation, proceed to issue its Award.
Default
- If the Claimant, fails to submit the Request for Arbitration (RFA) in accordance with the provisions of Article (12), this shall not, prevent the Tribunal from proceeding to determine any counterclaim raised by the Respondent.
- If the Respondent, without any good cause, fails to communicate its Statement of Defense in response to the Notice of Arbitration in accordance with Article (14), the Tribunal may nevertheless proceed with the arbitration and issue an Arbitral Award.
- The Arbitral Tribunal may, based on the available evidence, issue the final Arbitral Award if a party, without showing good cause, fails to present within the regulatory deadlines specified by the Arbitral Tribunal or stipulated in these rules.
- If a party, without showing good cause, fails to comply with any provision of, or requirement under these Rules or any direction issued by the Tribunal, the Tribunal may draw the inferences therefrom that it considers appropriate.
- Except the need for the Claimant to attend the Preliminary Meeting and the hearings coming up subsequently at the description of the Arbitral Tribunal, if a party, despite having been notified thereof as per these Rules, refuses, or fails to participate in the arbitration at any of its stages, the arbitral Tribunal shall continue to look into the Arbitration notwithstanding such refusal or failure on the part of the concerned party.
Waiver of Right to Object
- A party which knows that any provision of, or requirement under, these Rules, or any other rules applicable to the proceedings, or any Arbitral Award, has not been complied with, and yet proceeds with the arbitration without promptly raising an objection within no later than fifteen (15) days from the date of becoming aware of such non-compliance, shall be deemed to have irrevocably waived its right to object.
Forms of Termination of Arbitral Proceedings
- The Arbitral Tribunal shall notify the parties and IICRA of its decision on termination of the Arbitral proceedings, in any of the following cases:
- If further proceedings become unnecessary, or impossible for any justified reason.
- In case, the Arbitral Tribunal does not find that there are remaining matters that need to be decided.
- The Arbitral Tribunal shall issue its reasoned decision to terminate the arbitral proceedings, and a copy thereof shall be communicated to each party and IICRA.
- Any party may file at IICRA a grievance in writing with the Higher Shari’ah Committee against the decision of the Arbitral Tribunal regarding the termination of the Arbitration proceedings, and the Higher Shari’ah Committee shall respond to such grievance within fifteen (15) days from the date of its filing.
Final Arbitral Award
ARBITRAL AWARDS
Multiple Opinion of Arbitrators
- If any member of the Arbitral Tribunal refuses to participate in the deliberation of the Arbitral Award, the remaining Arbitrators may, after notifying IICRA in writing of such refusal, complete the proceedings and issue the Arbitral Award, taking into consideration the stage of the Arbitration case.
- The reasons for such determination on completion of Arbitral proceedings shall be stated by the Arbitral Tribunal in the Award issued by it, without the participation of the defaulting Arbitrator.
- If the majority of the Arbitrators decide not to proceed with the Arbitration in the absence of the defaulting Arbitrator, they shall suspend the proceedings and notify the parties and IICRA in writing of such determination, and in that event, the Tribunal or any party may refer the matter to the Supreme Shari’ah Committee in order to cancel the appointment of such arbitrator, and appoint a substitute Arbitrator, pursuant to the provisions of Article (25).
Supervision on Draft Final Arbitral Awards
- Pursuant to the provisions of the Regulations of IICRA Higher Advisory Committee, and for the purposes of ensuring the procedural, Shari’ah and legal aspects of the draft final Arbitral Award, and as per the nature and value of the dispute, the Arbitral Tribunal may submit to the Higher Shari’ah Committee, the draft Award to review, audit, and express its opinion on legal grounds and Arbitral proceedings stipulated in the draft Award.
- The Higher Shari’ah Committee shall prepare and submit its report on the draft final Arbitral Award within no later ten (10) days from the date of the receipt thereof, and its recommendation incorporated in the report shall not be binding upon the Arbitral Tribunal which may avail what is stated in the report to amend the draft Arbitral Award before signing it.
Duration of Arbitration
- The Arbitral Tribunal shall issue the final Arbitral Award within a maximum period of six (6) months from the date of receipt of the case file, unless the parties agree otherwise in writing, the Tribunal shall have the power to extend such period for up to additional six (6) months or less.
- The Higher Shariah Committee may decide to extend this time period for additional reasonable periods of times, pursuant to a reasoned request from the Arbitral Tribunal which must inform the parties of such decision and justifications thereof.
- The Arbitration period shall cease to run whenever the Arbitral proceedings are suspended before the Arbitral Tribunal and shall recommence as of the date on which the Tribunal decides on the reason for which the proceedings was suspended has ceased to exist. If the remaining period is less than a month, it shall be extended to one full month.
Final Arbitral Award
- The final Arbitral Award shall be issued in writing within the arbitration time period in order to categorically decide on the arbitration case and the counterclaim (if any).
- The Final Arbitral Award shall be reasoned by, unless the parties agree otherwise in writing, or the applicable law stipulated that the reasoning is not mandatory.
- The Final Arbitral Award shall include the following:
- the names in full, addresses and nationalities of the parties and members of the Arbitral Tribunal.
- the seat, language, and the basis/deed of Arbitration.
- A brief description of the nature of the dispute.
- A summary of the Arbitral proceedings and the Arbitral Awards issued during the arbitration, and a sufficient description of the documents exchanged.
- The Arbitral Tribunal shall, subject to the provisions of Paragraph two (2), state the reasons it has relied upon in final Arbitral Award, the legal grounds for the Award, the legal position of claims, defenses, evidence, and arguments raised in the Arbitration case.
- the Arbitral Tribunal shall, based on the actual expenses fixed by IICRA, determine in the final Award the total expenses of the Arbitration, and the party which shall bear those costs whether wholly or partially.
- The Arbitral Tribunal shall have the power and authority to estimate Attorney’s fees, and decide thereupon, if they are included in claims.
- The date and seat of the issuance of the Final Arbitral Award.
- When there is more than one Arbitrator, the final Arbitral Award, shall be issued by a majority of Arbitrators in compliance with the provisions of Article (53). Failing a majority, the Award shall be issued as per the opinion of the Chairman of the Tribunal which shall be considered as a highly regarded opinion. In this case, the discordant opinion bearing the signature of the Arbitrator shall also be written and attached to the Final Arbitral Award.
Notification of Final Arbitral Award
- The Final Arbitral Award shall be communicated by the arbitral Tribunal in a number of originals sufficient to provide one for each party, and all members of the Tribunal in accordance with the provisions of Article (11) of these Rules.
- IICRA shall communicate a certified original copy of the final Arbitral Award to each party and the Arbitral Tribunal within five (5) days from the date of the issuance of the Award, provided that the arbitration costs and fees have fully been paid to IICRA.
Interpretation of Final Arbitral Award
- Within thirty (30) days of receipt of the final Arbitral Award, any party may, at its discretion, by a written request to the Arbitral Tribunal, with a copy to IICRA and each party, request the Tribunal to explain any ambiguity in the Award.
- If the Arbitral Tribunal accepts the request for interpretation, it shall provide interpretation within fifteen (15) days of receipt of such request. Any interpretation, which shall take the form of a supplemental Award initialed or signed by the Tribunal, shall become part of and supplementary to the final Award.
- The Arbitral Tribunal may reject such request for interpretation, and its decision in this regard shall be subject to appeal to the Higher Shari’ah Committee in case it is raised before the Tribunal by the concerned party, provided that the Higher Shari’ah Committee responds to that appeal within three (3) days from the date of its filing. In all cases, the Tribunal shall, in this regard, consider the response of the Committee as a matter of appeal, not an obligation.
Correction of Final Arbitral Award
- Within thirty (30) days of receipt of the final Arbitral Award, any party may, with a copy to IICRA and the other party, request the Arbitral Tribunal to correct any computational, typographical, or material error that it deems to have occurred in the Final Arbitral Award.
- Or if the Arbitral Tribunal accepts the request, it shall make the correction within fifteen (15) days from the date on which it became aware of the occurrence of the error or from the date of the receipt of such request. Any correction made shall take the form of a supplemental Award initialed or signed by the Arbitral Tribunal and shall be considered a part of the final Arbitral Award.
- The Arbitral Tribunal may, on its own initiative, within thirty (30) days from the date of the issuance of the final Arbitral Award, correct any computational, typographical, or material error that it considers to have occurred in the Award.
- The Arbitral Tribunal may reject such request for correction, and its decision in this regard shall be subject to appeal to the Higher Shari’ah Committee in case it is raised before the Tribunal by the concerned party within seven (7) days from the date of the Tribunal’s refusal to accept such requested correction. In all cases, the response of the Committee in this regard shall be considered as a matter of appeal, not as an obligation within three (3) days from the date of filing such request.
Additional Arbitral Award
- Within thirty (30) days of receipt of the final Arbitral Award, any party may, with a copy to IICRA and the other parties, request the Arbitral Tribunal to issue an additional Arbitral Award on the issues not covered in the final Award.
- If the Arbitral Tribunal, after hearing the statements of the parties, accepts the request referred to in Paragraph (1), it shall, within forty (40) days from the date of accepting the request, issue an additional Arbitral Award.
- The Arbitral Tribunal may, on its own initiative, within (30) days from the date of the final Arbitral Award, issue an additional Arbitral Award.
- In all cases, the additional Arbitral Award shall be part of the final Arbitral Award.
ENFORCEMENT OF AWARDS
Enforcement of Final Arbitral Award
- 1) The parties shall be obligated to implement the final Arbitral Award issued under these rules voluntarily without any delay or procrastination, as the parties shall finally waive their right to any form of appeal, review, or recourse to any other Judicial or Arbitral Authority, insofar as such waiver may be validly made.
- 2) In case the final Arbitral Award is not voluntarily implemented, the concerned party may resort to its implementation by the public authorities through the procedures approved by the laws in force in the State where the seat of the Arbitration is located, and the enforcement in its geographical scope is sought, and pursuant to preliminary agreements related to the enforcement of foreign Arbitral Awards.
- 3) IICRA and the Arbitral Tribunal, each within the limits of its duties and powers, shall assist the parties to implement the final Arbitral Award.
Final Provisions
FINAL PROVISIONS
Costs of Arbitration & Funding
- The arbitration costs, including the Arbitrators’ remuneration, administrative fees, Experts’ remuneration, and other expenses, shall be determined in accordance with the provisions of the Rules for Arbitration and Reconciliation Expenses - Annex (2).
- A party unable to pay its share of the arbitration costs may resort to any of the legitimate financing solutions in order to pay such expenses in pursuit of justice, and the Arbitral Tribunal may require such beneficiary party to provide financial statement and state the concerned funder in the Arbitration case.
Retrieval of Documents
- Within a year from the date of communicating the final Arbitral Award to the parties or any equivalent procedures for notification thereof, any party may request IICRA in writing to retrieve the original documents it had submitted during the course of Arbitral proceedings. IICRA shall not be liable for any such documents upon completion of the said period.
- IICRA may destroy all copies of communications submitted by the parties or the Arbitrators upon expiration of the period referred to in Paragraph (1).
Language of Rules
- These Rules have been prepared in both Arabic and English languages, and in the event of a conflict in their interpretation, the Arabic language shall prevail.
Amendment
- The Board of Trustees has the right to amend these rules, its annexes, and its appendices, at any later date.
Online Arbitration Rules
With an accelerating development of e-commerce and transactions and the expansion of the horizons thereof, especially those that comply with the provisions of lofty Islamic Shari’ah, and in parallel with the dire need for fast-track disputes resolution in order to coincide with IICRA’s endeavor to reduce arbitration costs in line with its non-profit nature as one of the infrastructure institutions in Islamic economy, in addition to enhancing the other advantages of dispute resolution such as confidentiality, impartiality, flexibility, and specialization, IICRA is currently working on developing its dispute resolution methods, to keep pace with such development, and meet the requirements for disputes resolution through institutional Reconciliation & Arbitration using electronic platform (referred herein with as e-platform).
Accordingly, IICRA has approved this Regulation in order to be integrated with Arbitration rules and Reconciliation Rules in the event that the parties to the Arbitration agree to utilize e-platform, in accordance with the provisions which are as follows:
Definition
DEFINITION
- The following words and expressions shall have the meanings assigned thereto, unless otherwise required by the context.
- Electronic Platform: refers to a set of software and hardware prepared IICRA that works on data management, information, documents, creation, extraction, sending, receiving, storing, and displaying messages and documents related to the parties electronically as well as assisting the parties to hold virtual meetings through modern technical means for corespendece and virtual communications.
- Online Arbitration: refers to dispute resolution through Arbitration using e-platform, in accordance with the Arbitration Rules and the Provisions for in this appendix.
- Online Reconciliation: refers to dispute resolution by discussing the reconciliation endeavors utilizing e-platform, in accordance with the Reconciliation Rules and the Provisions set forth in this appendix.
- Electronic Data: refers to any records, communications, documents, information, statements that are created, stored, extracted, copied, transmitted, or communicated by electronic means or stored in an electronic medium such as the information generated from e-mail online char record, text messages, etc.
- Electronic Service Address: refers to the e-mail addresses and numbers for text messages specified by the party using e-platform or determined by the Arbitral tribunal for the purposes of notification and the exchange of electronic data related to Online Arbitration or Reconciliation.
- Virtual Hearings: refers to those remote Hearings approved by the Arbitral Tribunal with the parties held through any forms of electronic audio-visual communications (whether it is Preliminary Hearings, or Hearings etc.)
- Electronic Signature: refers to the signature consists of letters, numbers, symbols, a plugin electronic data processing system, or logically linked to electronic data, and affixed with stamp with an intention of authenticating or adopting such electronic data.
- The words used in singular include in their meanings the plural and vice versa wherever the context so requires. Similarly, these shall be construed as gender neutral.
Scope & Seat of Online Arbitration & Online Reconciliation
- This appendix refers to the settlement of all disputes that IICRA accepts for adjudication, which the parties to Arbitration refer to via e-platform for their resolution in accordance with the Rules of Reconciliation or Rules of Arbitration, so that this annex becomes supplementary and subject to amendment to those rules.
- The Arbitral Tribunal, the Conciliator, or the Expert may propose to the parties to utilize e-platform in order to facilitate the tasks entrusted to him at any stage during the course of carrying out the mission.
- The Seat of Arbitration and the Seat of Reconciliation shall be determined via e-platform in accordance with the headquarters of IICRA determined by the Higher Shari’ah Committee unless the parties agree otherwise on other Seat for Online Arbitration or Online Reconciliation.
Request to Use E-Platform
- A party may submit a written Request to IICRA in order to initiate or complete dispute resolution through online Arbitration or Online Reconciliation, and IICRA shall respond to such request within five (5) days from the date of its submission, taking into consideration the consent of the other parties, the agreed Conciliator (if any), and the approval of the Arbitral Tribunal in the event of its constitution prior to the submission of the request.
- If IICRA accepts such Request, each party shall then, prior to using e-platform, follow the procedures and steps imposed by such platform related to identification and proof of its identity, confirmation of its electronic service address in accordance with the provisions of Article (7) of these Regulations, and adoption of its e-signature, so that IICRA can provide such party with Username and Password.
Username & Password
- The Username shall be identical to the name of the natural person listed in his Identity (Id) Card or shall be identical to the name of the legal person indexed on his license or substitute documents serving as identity proof.
- Each party shall obtain a username and passcode from IICRA and maintain the confidentiality thereof and will not disclose it to a third party. In case, it happens inadvertently, the account holder shall inform IICRA directly, so that IICRA changes those account data and provide the concerned party with a new account data and information.
- Any act or action performed on the electronic platform by login with the username and password provided by IICRA to one of the parties, shall be deemed exclusively as an act of the party having been identified, unless that party having been identified can prove that its account for electronic Platform has been used without its authorization.
- The electronic platform, in coordination with IICRA, allows any party, Arbitrator, Conciliator, Expert, or translator to change passcode at any time during the course of Arbitral proceedings.
Conduct of Online Arbitration Proceedings
Conduct of Online Arbitration Proceedings
- Online Arbitration shall be conducted via electronic platform, including its specific elements and features, in order to bring the points of view expressed by the parties closer, exchange proposals, and discuss Reconciliation efforts in a specified period of time. The proceedings shall complete either by reaching a settlement agreement between the parties or by declaring the Reconciliation efforts unsuccessful.
Conduct of Online Reconciliation Proceedings
- Reconciliation efforts shall be discussed via electronic platform, including its specific elements and features, in order to bring the points of view expressed by the parties closer, exchange proposals, and discuss Reconciliation efforts in a specified period of time. The proceedings shall complete either by reaching a settlement agreement between the parties or by declaring the Reconciliation efforts unsuccessful.
Requirements for Electronic Platform
- The Parties wishing to use the electronic platform in order to resolve their dispute through Online Reconciliation or Online Arbitration are required to possess the capacity and tools that enable them to do so, including but not limited to, such as ability to send instant messages, attend virtual Hearings, exchange electronic data and information, and submit e-signature. electronic communication and use other means of visual communication.
- IICRA may, upon the request of any party, may transfer the case file from online Arbitration platform to offline arbitration in accordance with the procedures stipulated in IICRA Arbitration Rules or the Reconciliation Rules in case the party is unable to use the electronic platform, and such transfer or change shall not affect the progress of Arbitral proceedings.
Electronic Domicile
- The party wishing to use the electronic platform shall specify in writing, IICRA and the rest of the parties the details of its chosen electronic address before the initiation of Online Arbitration or Online Reconciliation proceedings.
- Each party, during the period of using electronic platform, shall ensure the validly of its chosen electronic address to be legal and valid for electronic communication. No error or risk shall be born or taken into consideration other than that of failure of the Service itself by the Provider.
Submission of Documents and Authenticity Thereof
- Each party wishing to submit documents related to Online Arbitration or Online Reconciliation, shall convert such documents it into electronic data or format through scanning, photographing, or any other means that enables such party to upload it to the electronic platform from its dedicated account by using the chosen electronic address.
- Authentic electronic data shall be deemed equal to communications, documents, transcripts, and official and customary records, whenever the terms and conditions stipulated in the provisions of these Rules are fulfilled.
- The date and time of submission of a document shall be deemed as the date and time, the document is successfully uploaded to the Electronic Platform.
- Each party shall retain a copy of any submitted electronic data on the electronic platform, attached thereto the notice indicating the date and time of the submission, to evidence the facts against the other parties / as evidence to be used against the other parties.
- Electronic data shall be deemed to have been duly served if:
- It has been sent to one of the parties to the chosen electronic domicile agreed upon by the parties;
- the notice is sent to one of the parties to check or download the electronic data at the Electronic Platform;
- the addressee responds that it has received the served electronic data, or it has performed the relevant Arbitration and Reconciliation proceedings in accordance with the served electronic data;
- the addressee’s system indicates that the addressee has read the served electronic date, or other evidence demonstrates that the addressee has received the served electronic date;
- In all cases, if the addressee establishes that the date on which such electronic data reaches its specified system is inconsistent with the date of successful sending indicated by the corresponding Electronic Platform, then the date established by the addressee shall prevail.
- Any notices and alerts issued by the electronic platform to any party shall be considered as correspondence that fulfills its purpose as long as you provide evidence of the transmission;
- Any notices and alerts issued via electronic platform to any party shall be deemed to have duly served its purpose as long as evidence is provided by sending;
- During an Online Arbitration, any electronic data related to documentary evidence, especially reports and opinions of designated experts, investigation records, and other evidence and arguments presented by either of the parties, shall be deemed original for the purposes of the requirements of official transactions, in the event that it is presented and approved by the Arbitral Tribunal.
Witnesses and Experts
- Witnesses and Experts shall be summoned and questioned on display screens and headphones through which the talks and discussions with witness or expert can be made. The issue of questioning the experts and hearing witnesses shall be subject to the discretion of the Arbitral Tribunal.
Virtual Hearings
Virtual Hearings
- The Arbitral Tribunal shall hold virtual meetings and exchange communications via Electronic Platform.
- The parties shall be notified of the date of virtual hearing no later than five (5) day in advance.
- During virtual hearings, communications, documents, and other Arbitral proceedings in the case may be exchanged.
- The minutes of the virtual hearings held via electronic platform, shall be recorded, and archived once its audited and verified by the Arbitral Tribunal.
- The Arbitral Tribunal may decide to hold offline hearings while the rest of the proceedings are still conducted online.
Language of Proceedings
- The use of Arabic and English language as the language of Online Arbitration or Online Reconciliation system shall in parallel with the language adopted by the Arbitral Tribunal or Conciliators, shall not harm or affect the adjudication of dispute.
Electronic Minutes and Documents
- During an Online Arbitration, the Arbitral Tribunal Secretary, shall be responsible for uploading electronic minutes and documents approved by the Arbitral Tribunal.
Challenge of Documents
- The copies of documents are accepted through electronic platform. However, this shall not preclude or prevent IICRA, Arbitral Tribunal, Conciliators or Experts that the party which submits such documents be designated to present the original documents, if this is deemed necessary by them, in accordance with the provisions stipulated in the Arbitration Rules.
- The challenge or refusal by a party of the documents submitted by the other party in the Arbitration case merely for being copies, shall be disregarded unless the party challenging the same insists that these documents are inauthentic and have not been issued by the party to which they are attributed. If the challenge or allegation of inauthenticity of such documents is unjustifiable, and leads to delay in adjudicating the dispute, or the party presenting these documents incurring unjustified additional expenses, the Arbitral Tribunal, may order the party that has challenged or alleged these documents to be inauthentic to bear these expenses and compensate for the damages suffered by the other party without prejudice to right of that party to take legal measures it deems appropriate in order to preserve its right.
- If the documents challenged prove to be inauthentic, and the Arbitral Tribunal suspects that forgery has occurred, the tribunal then, shall notify IICRA thereof, and suspend the Arbitral proceedings until the issue of forgery is decided by the competent authorities.
Change of Procedures
- During an Online Arbitration, The Arbitral Tribunal or the Conciliator may, upon the request of any party or as required, change some or all of the Arbitration or Reconciliation procedures into the procedures stipulated in Arbitration Rules or Reconciliation Rules.
Electronic Signature
- The Arbitral Award shall be signed by the Arbitral Tribunal electronically in favor of the Award and the settlement agreement, and likewise the settlement agreement shall be signed electronically by the Conciliator and the parties to the settlement and shall be affixed with the electronic seal of IICRA.
- The Arbitral Tribunal may, at its discretion or upon the request of either of the parties, seek the assistance of a technical expert to verify the validity of the electronic data and signature.
Technical Glitches
Technical Glitches
- A party shall directly notify IICRA of any technical or practical glitches occurring during using the electronic platform, and any other excuses that such party may claim without such notification shall not be considered.
Duration of Online Arbitration
- The Arbitral Tribunal shall issue the final Arbitral Award through the online platform within three (3) months from the date on which the members of the Tribunal are provided with their passcodes. Where there are special circumstances or legitimate reasons justifying an extension of the duration of the Online arbitration, IICRA then, may approve an appropriate extension upon the request of the Arbitral Tribunal.
Limitation of Liabilities
- The Arbitral Tribunal or IICRA shall bear no liability to any party for any loss from cyberattacks, system instability, network faults or other circumstances not intentionally caused by the Tribunal or IICRA.
Usage and Storage of Data
- The electronic platform shall use and archive electronic data related to dispute resolution in accordance with the provisions of the relevant laws and regulations in force in the headquarters country on combating cybercrimes.
- IICRA shall maintain the hard copies of entire online Arbitral proceedings and documents thereof for authentication purposes and shall preserve the rights of the parties in case the electronic platform is disrupted or hacked.
Archival and Confidentiality of Data
- IICRA shall record and archive electronic data, and it shall be confidential and may not be circulated, accessed, copied, or erased from the electronic platform without the authorization of IICRA.
Amendment and Interpretation of these Rules
- The headings of the Articles in these Rules may not be construed as an interpretation for the provisions thereunder, the power to interpret or amend any provisions stipulated in these regulations shall remain within the jurisdiction of IICRA’s Board of Trustees.
Validity
- The Provisions stipulated in these Rules shall be effective as from 15, Jumada Al-Ula 1442 AH corresponding to 30 December 2020.
Professional Islamic Code of Ethics for Arbitrator
The arbitrator’s mission is to achieve justice and equality between the disputants, and it is a common objective of a judge’s mission. The arbitrator appointed by International Islamic Centre for Reconciliation and Arbitration (IICRA) shall abide by the Code of Conscience leading to achieve justice between the disputing parties with professionalism, honesty, sincerity, and objectivity. The nobility of Arbitrator’s task requires him to adhere to the professional Code of Ethics in order to exercise his duties and responsibilities. The breach of such Codes or any of them by him may held him accountable, in the event of default, misconduct, or intentional breach, which may cause serious harm to the parties.
Caliph Umar Bin Faroq, in his Letter addressed to Abu Musa Al Ash’ari when he appointed him, as the Governor of Kufa (Basra), had formulated Professional Islamic Code of Ethics related to Judge’s mission which constitutes an important part of the presumed Code of Ethics for the Arbitrator exercising his duties at IICRA. In the letter, it was stated that:
In the Name of Allah, the most Gracious, the most Merciful. From Umar Bin Al Khattaab, the Commander of faithful to ‘Abdullah Ibn Qays (May Allah be pleased with him), (Abu Musa al Ash’ari) peace be upon you and thereafter:
“Judging (the judicial system) is a confirmed obligation and a way to be followed. Try to understand when cases are presented to you, for there is no use in a person presenting his case if it is not understood. Treat people equally when you address them so that no noble man will hope that you side him unfairly and no weak man will despair of your justice. The burden of proof rests with the plaintiff and the oath is required of one who denies it. It is permissible to make a deal between Muslims, except a deal that permits something that is forbidden or forbids something that is permitted. If you passed a judgment yesterday, then examined it further today in your mind and are guided to a different conclusion, then that should not prevent you from returning to the truth, for truth is eternal, and returning to the truth is better than persisting in falsehood. Carefully examine each issue which you are unsure about, where there is no text in the Qur’an and Sunnah, try to find a similar case, draw analogies, and see which is more likely to be pleasing to Allah and closest to the truth. Whoever claims that someone owes him some dues, set a time limit for him to produce his evidence. If he provides evidence, then restore his rights to him; otherwise ask him to drop his claim. That is better so as to eliminate any doubt. The Muslims are basically of good character, except one who has been lashed as a hard punishment or who is known for bearing false witness. Allah is in charge of what is hidden in people’s hearts. Judgment must be based on evidence and oaths. Beware of becoming an impatient, because judging in accordance with the truth bring a great reward from Allah and stores a great deal of reward (in the Hereafter). Whoever has a good intention and checks himself, Allah will be sufficient for him (and he need not worry about people), but whoever shows an attitude to people which Allah knows is not his true attitude, Allah will expose him. Think of the reward of Allah in this world and the Hereafter. And peace (be upon you)”.
Therefore, IICRA has approved this Charter to determine the Professional Islamic Code of Ethics for the Arbitrator to adhere to while performing his duties in disputes resolution under IICRA. Those Code of Ethics are as follows:
Impartiality
Impartiality (Independence)
- An Arbitrator shall decline an Arbitration if he feels that he will not be able to conduct it in an impartial manner. Impartiality means freedom from favoritism, bias, or prejudice. He shall avoid conduct that gives the appearance of impartiality. An Arbitrator shall not act with partiality or prejudice based on parties’ personal characteristics, background, values and beliefs, or their performance in the course of Arbitral proceedings or any other reason.
- An Arbitrator shall neither give nor accept a gift, favor, loan, or other inducement having material or moral value that raises a reasonable doubt as to the Arbitrator’s actual or perceived impartiality. An Arbitrator shall ensure that the parties understand that his role is that of neutral intermediary, not that of representative of or advocate for any party.
- An Arbitrator shall be responsible for resolving the dispute by observing high standards of Islamic Code of Ethics so that the integrity and fairness of dispute resolution process will be preserved. He shall act in a way that is fair to all parties and should not be influenced by outside pressures or self-interests.
- An arbitrator shall avoid conduct and statements that give the appearance of partiality toward or against any party. It is not permissible for an arbitrator to act during the proceedings as an advocate for any party and advise any party on the merits or the outcome of the dispute whether before or after the appointment.
- An Arbitrator shall make no unilateral or individual arrangements with any of the parties or their Counsels for the payment any original or additional fees or expenses to adjudicate the dispute, provided that this is done through IICRA exclusively.
- If at any time, an Arbitrator becomes unable to serve in an impartial manner, the Arbitrator shall withdraw in writing.
Disclosure
- An Arbitrator shall, before signing the Mission Contract, disclose in writing to the parties and IICRA, later on, all relevant circumstances and information that he has on the subject of the dispute (if any).
- An Arbitrator may, after disclosure if all relevant parties agree in writing, may proceed with Arbitration. In such case, the Arbitrator may only agree to act or continue to act if he is certain of being able to carry out the Arbitration in full independence and impartiality throughout the Arbitral proceedings.
- An Arbitrator shall, from the date of his appointment and throughout the Arbitral proceedings, must disclose in writing to the parties and IICRA, at the earliest possible, any existing or potential circumstances that are likely to raise a serious doubt as to his impartiality and independence. Such circumstances include but not limited to:
- Financial or personal, direct, or indirect, interests of Arbitrator with the parties to the dispute or with either of them.
- Existing, past, or future professional, and financial relationship with any of the parties or their representatives about which the Mediator is aware.
- Any other potential source of bias or prejudice that may affect that Arbitrator’s independence or impartiality or reasonably create an appearance of partiality or bias.
- In all cases, the Arbitrator shall withdraw if he has a direct or indirect personal interest in the result of the dispute, if he feels partiality towards one of the parties to the dispute or in case, he is personally aware of facts that indicate anything disputed within issues considered before him in the Arbitration or he had previously served as a lawyer for one of the parties to the dispute or with one of their legal representatives in the dispute presented for adjudication before him.
No Conflict of Interest
- An Arbitrator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for an Arbitrator. A Mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.
- An Arbitrator may not, after accepting appointment, and until the end of Arbitral Proceeding, enter into business, professional, family relationships with the parties or acquire personal or financial that is likely to affect or might reasonably create the appearance of conflict of interest, bias, or favoritism, without making a prior disclosure to all the parties and gaining their explicit consent to continue to act.
- An Arbitrator may not, at no time following the completion of Arbitral proceedings, adduce evidence or testify on behalf of one of the parties using the confidential information in the same Arbitration, unless all that information is no longer confidential or unless the party protected by the confidentiality gives consent.
Professionalism and Competency
Professionalism and Competence
- An Arbitrator may not decide in a specific Arbitration until he has the appropriate scientific and practical competence to satisfy the reasonable expectations of the parties, including his understanding of Shari’ah, legal, and technical aspects of Islamic Financial Transactions relating to the subject matter of the dispute.
- An Arbitrator shall set his eyes on settling the disputes in a manner that does not contradict the principles and provisions of Islamic Shari’ah. Also, he must ensure that he carefully reads the dispute details and integrity of its legal adaptation, and then reasoning and justification of Arbitral Award and operative parts thereof. For this, he must consult with Supreme Shari’ah Committee of IICRA and shall not find it difficult to amend the Award and implement the observations, recommendations, and proposals made by the Committee.
- An Arbitrator shall devote such attention and time to acquaint himself with all the facts and arguments presented, and discussions made related to the proceedings so that he could properly understand the reality of the dispute, and the positions of the parties, and shall do his best to exercise his duties, without procrastination, omission, or negligence.
- An Arbitrator shall be prohibited from exerting pressure on any party to reach an amicable settlement or resorting to any other dispute resolution method than that of Arbitration. Likewise, an Arbitrator shall not be present or otherwise participate in the settlement discussions, or serve as a Mediator, unless requested to do so by all parties. In such a case, he cannot serve as an ِArbitrator in the same dispute.
- An Arbitrator shall be prohibited, after the Arbitral Award has been issued, from assisting any party, directly or indirectly, in the proceedings to enforce or challenge the Award.
- If the Arbitral Tribunal is constituted by more than one Arbitrator, then each Arbitrator shall coordinate with other members of the Tribunal for full participation in the entire arbitral proceedings.
Preserving the Quality of the Procedures
- If the Arbitral Tribunal is constituted by more than one Arbitrator, then each Arbitrator shall coordinate with other members of the Tribunal for full participation in the entire proceedings.
- An Arbitrator should not accept the task assigned to him in case he is not willing to give necessary commitment and attention to resolve the dispute in a fair and effective manner, within the prescribed time limits, and in a manner that ensures the fairness and quality of procedures between all parties.
- An Arbitrator shall make all necessary and reasonable efforts to prevent any party from resorting to dilatory tactics in settling dispute, or harassing the parties, or abusing the procedures, or in any way disrupting them, in bad faith.
- If an Arbitrator finds that a Party appears to have difficulty participating in the Arbitral proceedings, the Arbitrator shall, to the extent possible, explore circumstances, solutions, or potential accommodations, modifications, or adjustments to that difficulty or problem.
- An Arbitrator, when holding the Hearings, or calculating the regulatory deadlines, must take into consideration that they do not conflict with prayer times, especially with the Friday prayer time.
Communications
- Whenever an Arbitrator communicates in writing with one party, the Arbitrator should at the same time send a copy of the communication to every other party, and whenever the Arbitrator receives any written communication concerning the case from one party which has not already been sent to every other party, the Arbitrator should either send it by his side or cause it to be sent to the other parties by the Arbitral Tribunal Secretary.
- An Arbitrator should avoid any unilateral communications regarding the case with any party, except in any of the following circumstances:
- When the appointment of an Arbitrator is being considered in order to verify the compliance with the Provisions stipulated in the Charter, the prospective Arbitrator may ask about the identities of the Parties, Counsels, or Witnesses and the general nature of the case;
- An Arbitrator may respond to inquiries from a party, designed to determine his or her suitability to serve as an Arbitrator. In any such dialogue, the prospective Arbitrator may receive information from a party or its counsel disclosing the nature of the dispute.
- An Arbitrator through Arbitral Tribunal Secretary should hold discussions with a party concerning such logistical matters, such as setting the time and place of hearings or making other arrangements for the conduct of the proceedings. However, in such a case, the Arbitrator should promptly inform other parties of such discussion and should not make any final determination concerning the matter discussed before giving each party an opportunity to express the party’s views or opinion.
- An Arbitrator should afford to all parties’ due notice of the time and place of any hearing and allow each party a fair opportunity to present its evidence and arguments.
- In fact, all in all, the Arbitrator shall designate the Arbitral Tribunal Secretary to serve as an interface between him and the parties for the sake of coordination and consultation.
- If an agreement of the Arbitration parties provides the Codes of communications for the Arbitrator, then he must adhere to such Codes and procedures exclusively.
Confidentiality
- An Arbitrator shall maintain the confidentiality of all matters and communications relating to Arbitral proceedings and the information obtained while serving as an Arbitrator. However, an Arbitrator may obtain assistance from a research assistant or associate, or other persons in connection with performing his/her task, provided that the Arbitrator informs all parties of the use of such assistance, and such persons agree to bound by the Provisions stipulated in this Charter.
- An Arbitrator should not inform anyone of the Arbitral Award in advance of the time it is given to all parties.
- An Arbitrator shall promote understanding among the Translators, Experts, and Witness, of their obligation to maintain confidentiality of information they obtain during the course of Arbitral proceedings.
- If an Arbitrator participates in an education, research, study, training, or evaluation, etc., he shall keep confidential all information and abide by the Parties’ reasonable expectations regarding confidentiality.
- Based on the circumstance of the dispute, the parties may have varying expectations regarding the confidentiality of dispute resolution. The Arbitrator should address and abide by such aspirations by ensuring the confidentiality or easing restrictions thereof if the parties so desire.
Fee and Expenses
Fees and Expenses
- Based on IICRA Rules and Regulations, the arrangements related to the Arbitrator’s fees should be in writing. And provided to the parties before filing an Arbitration Case.
- An Arbitrator shall abide by the Table of Arbitration fees and expenses under IICRA, and in case IICRA requests the Arbitrator to determine his fees, he should develop them in light of all relevant circumstances, including the type and complexity of the matter, the time required to settle it, and the customary fees for such dispute resolution services.
- An Arbitrator shall not enter into a fee agreement which is contingent upon the result of his assignment or amount of the settlement.
- While IICRA, and an Arbitrator may accept unequal fee payments of an Arbitrator or the Tribunal from the parties, provided that this doesn’t affect the integrity of impartiality of the Award.
- In case there is an Arbitrator’s assignment within the Arbitral Tribunal consists of a number of Arbitrators, The arbitrator may consider estimating the additional effort of the Chairman of the Tribunal when agreeing on the fees of members of the Tribunal, for instance, 40% for the Chairman of the Tribunal and 30% for the other Co-Arbitrators.
- An Arbitrator shall provide IICRA with true information with supporting documents about the fees, and expenses of his mission and any other actual or potential expenses that may be incurred in connection with an Arbitration.
Advertising & Solicitation
- An Arbitrator shall be truthful when advertising, soliciting or otherwise.
- An Arbitrator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the dispute resolution procedures or includes any promises as to outcome in soliciting.
- If an Arbitrator communicates to others, in promotional materials or through other forms of communication, then he shall not disclose the names of the persons served without their prior permission.
Behavior Control
Educational Conduct
- An Arbitrator shall engage in participating in research relating to Arbitration at IICRA when given the opportunity, including documenting his experiences in settling disputes in the Islamic financial industry in order to enrich the jurisprudence of transactions and Islamic Arbitration.
- An Arbitrator shall assist in promoting the culture of Arbitration in a manner that does not contradict the Principles of Islamic Shari’ah.
- An Arbitrator shall assist youth people interested to become a specialized Arbitrator, through training, monitoring, and networking.
- An Arbitrator should demonstrate respect for differing points of view of his colleagues within the field, seek to learn from them and work together with them to improve the Arbitration and better serve parties to the dispute in order to achieve justice.
Amendment
- The Board of Trustees has the right to amend the provisions stipulated in this Code at any later date.
Validity
- The provisions stipulated in this Code shall be effective as of 15 Jumada Al-Ula 1443 AH corresponding to 30 December 2020
Arbitration Features
Specialization
Professionalism
Independence
Internationality
Efficiency
Integrity/Binding Award
Multifuctional
Confidentiality
Non-profitability
Flexibility
Arbitration & Reconciliation Costs
Pursuant to the provisions of Articles (6) and (21) of IICRA Chart, and in accordance with the decision made by the IICRA Board of Trustees in its meeting held dated 15 Jumada Al-Ula 1443 AH corresponding to 30 December 2020, in the Emirate of Dubai, United Arab Emirates (UAE), regarding the adoption of the provisions of this regulation for controlling Arbitration and Reconciliation expenses as Annex (1) for the Arbitration Rules and Reconciliation Rules, are as follows:
Introductory Provisions
Clauses of Arbitration Costs
- Arbitration costs include the Clauses which are as follows:
- IICRA administrative fees are the fees charged by IICRA in order to cover its administrative costs, as specified in Article (A-1-9) of these regulations.
- The fee of the Arbitral Tribunal is the fee of all the members of the Tribunal, whether it consists of a Sole Arbitrator or a number of Arbitrators, as provided for in Article (B-1-9) of these regulations.
- The fee of Arbitral Tribunal Secretary is the remuneration of Secretary for performing his/her task which is to be fixed at the rate of five percent (5%) of the total fees determined for the Arbitral Tribunal and deducted from the fee of the Tribunal for the secretary.
- Additional Arbitration Costs include the reasonable travel and accommodation expenses incurred by the Arbitrators, Witnesses, remuneration of Experts and Translators, and other costs to be disbursed in order to duly complete the Conciliation proceedings.
Clauses of Reconciliation Costs
- Reconciliation Costs include the Clauses which are as follows:
- a) IICRA administrative fees include the fee charged by IICRA in order to cover its administrative costs to be determined in accordance with the provisions of Article (9), paragraph (2).
- b) Fee of Conciliator is the remuneration of Conciliator to be determined in accordance with the provisions of Article (9), paragraph (2).
- c) Additional Reconciliation Costs include the reasonable travel and accommodation expenses incurred by the Conciliator, and other costs to be disbursed in order to duly complete the Conciliation proceedings.
Control of Arbitration Costs
Ceiling of Administartive Costs
- In all cases, given the non-profit nature of the IICRA and it resolution of disputes in a manner that does not contradict the provisions of lofty Islamic Shari’ah, IICRA ensures that the value of the administrative fees for Arbitration or Conciliation under IICRA does not exceed 2% of total value of the dispute.
Registration Fee
- IICRA shall receive for each Request for Arbitration, a filing fee of one thousand (1,000) US dollars, which shall be reduced to five hundred (500) US dollars in case arbitration is filed via e-platform.
- IICRA shall receive for each Request for Conciliation, a filing fee of five hundred (500) US dollars.
- In all cases, the filing fee shall be non-refundable.
Deposit of Arbitration Fee
- IICRA shall, prior to the transmission of Case File to the Arbitral Tribunal, prepare a tentative estimates list for Arbitration costs, in order to request the parties to pay it in equal shares.
- The Parties, at any stage during the course of proceedings, may be mandated to make supplementary deposits.
- If the deposits requested, within seven (7) days from the date of receiving such request. are not made, IICRA shall then notify the parties thereof.
- IICRA shall mandate the willing party to deposit the required amounts within five (5) days. If such expenses are not paid, IICRA or Arbitral tribunal may suspend the Arbitral Proceedings, or administratively preserve it, or terminate it.
- Unless otherwise decided by IICRA, neither the Arbitral Tribunal shall be appointed, nor the Arbitral proceedings shall be initiated unless the entire arbitration costs are deposited.
- The Final Arbitral Award shall determine the party liable to pay the Arbitration costs either wholly or partially.
Methods of Payment for the Fee of Arbitrators and Secretary
- IICRA shall, at an Arbitration Case file delivery Meeting, pay half of the prescribed fees to the Arbitrator and Tribunal Secretary, provided that there is a commitment by the parties to pay the entire arbitration costs, and other half shall be made to them only after the issuance of the final Arbitral Award and expiration of the period for requesting an explanation and correction thereof.
- In the event of multiple members of the Arbitral Tribunal, the fee shall be distributed among them equally unless the members of the Tribunal agree otherwise.
Reconciliation Costs
Deposit of Reconciliation Costs
- IICRA shall, upon filing the Request for Reconciliation, prepare a tentative estimate list for Conciliation costs, based on the Provisions set out in these Regulations, and the parties shall be required to deposit a specified amount in equal shares to cover those expenses.
- The parties, at any stage during the course of proceedings for discussing the Means for Amicable Settlement, may be mandated to make supplementary deposits.
- If the deposits requested in Paragraphs (1) and (2) are not made within seven (7) days from the date of receiving such request, IICRA shall then notify the parties thereof.
- IICRA shall mandate the willing party to deposit such payment within five (5) days, and if the said payment is not made, the Conciliator or IICRA may suspend the Conciliation Proceedings, or administratively preserve it, or terminate it.
- The Conciliator shall not begin to perform the designated tasks prior to the deposit of the entire conciliation costs by the Parties unless the Conciliator and IICRA decide otherwise.
- The settlement agreement may include the party liable to pay the reconciliation costs in whole or in part, and in the absence of such inclusion in the settlement Agreement, the reconciliation expenses shall be paid by the Parties in equal shares.
Methods of Payment for the Fee of Conciliator
- IICRA shall, upon signing the Mission Contract, pay half of the prescribed fees to the Conciliator, provided that there is a commitment by the parties to pay the entire Reconciliation costs, and other half shall be made to him only after signing the Settlement Agreement.
- In case, the proceedings for discussing the Means for an Amicable Settlement are terminated without reaching a settlement agreement, IICRA shall then, in consultation with the Parties, decide on the costs based on the volume of the task accomplished by the Conciliator or any other relevant circumstances.
Schedule of Costs
Table of Arbitration & Reconciliation Costs
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- Except for the cases as provided exclusively in these Rules, IICRA shall determine the Arbitration costs from its administrative fees and the fee of the Arbitral Tribunal composed of three arbitrators, as follows:
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IICRA’s Administrative Fees in US Dollar Amount in Dispute Administrative Fees From To Up To 1,500,000 2% 1,500,001 3,000,000 An amount of 15,000 + 1.6% on amounts exceeding 1,500,000 3,000,001 5,500,000 An amount of 25,000 + 0.8% on amounts exceeding 3,000,000 5,500,001 10,000,000 An amount of 35,000 + 0.6% on amounts exceeding 5,500,000 10,000,001 15,000,000 An amount of 45,000 + 0.3% on amounts exceeding 10,000,000 15,000,001 20,000,000 An amount of 55,000 + 0.2% on amounts exceeding 15,000,000 20,000,001 30,000,000 An amount of 65,000 + 0.1% on amounts exceeding 20,000,000 More than 30,000,000 An amount of 75,000 + 0.05% on amounts exceeding 30,000,000 -
IICRA’s Administrative Fees in US Dollar Amount in Dispute Arbitrators’ Fees consisting of three arbitrators From To Up to 250,000 An amount of 17,500 250,001 750,000 An amount of 17,500 + 7.5% on amounts exceeding 250,000 750,001 1,500,000 An amount of 32,500 + 7% on amounts exceeding 750,000 1,500,001 3,000,000 An amount of 55,000 + 3% on amounts exceeding 1,500,000 3,000,001 5,500,000 An amount of 75,000 + 1.85% on amounts exceeding 3,000,000 5,500,001 10,000,000 An amount of 100,000 + 1% on amounts exceeding 5,500,000 10,000,001 15,000,000 An amount of 125,000 + 0.65% on amounts exceeding 10,000,000 15,000,001 20,000,000 An amount of 150,000 + 0.45% on amounts exceeding 15,000,000 20,000,001 30,000,000 An amount of 170,000 + 0.25% on amounts exceeding 20,000,000 More than 30,000,000 An amount of 190,000 + 0.05% on amounts exceeding 30,000,000
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- Except for the cases as provided exclusively in these Rules, IICRA shall determine the Reconciliation costs including its administrative fees and the fee of the Conciliator, equivalent to half of the amounts determined in Arbitration in accordance with the provisions set out in paragraph (1) of this Rule.
- Fee of the Sole Arbitrator, fixed by IICRA, shall be half of the fees determined for the Arbitral Tribunal as specified in the Table or may even be less than that.
- IICRA shall determine the fee of the Arbitral Tribunal consisting of three (3) Arbitrators in accordance with the provisions of Article (A/9/1), at the rate of one third for each Arbitrator, unless agreed otherwise.
- Fees may, in exceptional circumstances, be fixed differently from the table, if the Higher Shari’ah Committee decides that it is required by the scale and complexity of the Arbitration Case.
- If the amount of the dispute is not specified, then IICRA shall, in light of the size and complexity of the dispute, determine the administrative fees, and fees of the Arbitral Tribunal or fee of the Conciliators.
Refunding Remaining Arbitration & Reconciliation Costs
- IICRA, a month after from the date of the issuance of the final Arbitral Award and from the date of reaching the settlement Agreement, shall prepare a statement of actual deposits and costs related to the Arbitration & Reconciliation Case, and shall produce it to the parties upon their request, followed by the settlement of all financial matters by refunding the remaining Arbitration expenses to the party which made such deposits.
Fee of Higher Shari’ah Committee
- IICRA shall pay the fees of the Higher Shari’ah Committee for the purpose of implementing the provisions of the Arbitration Rules and the Reconciliation Rules.
General Provisions
General Provisions
- The Arbitrator, Conciliator and Tribunal’s Secretary can’t, either directly or indirectly, make any separate agreement with the Parties and their representatives regarding his fee and the Arbitration costs.
- The Arbitrator can’t, either directly or indirectly, accept any form of gifts or benefits, from the arbitration parties or their representatives, either before commencement of arbitral proceedings, or during or after the completion of the proceedings, with their lasting commitment to the provisions of the Codes of Ethics.
- No additional fees may be charged by the Arbitral Tribunal for interpretation of final Arbitral Award or issuance of its additional award without prejudice to the right of the Tribunal to claim its fees and expenses under these rules.
- Counterclaims shall be treated as Requested for Arbitration (RFA) and shall be accompanied by a fee according to the value of the counterclaims.
- The Higher Shari’ah Committee shall decide, taking into account the efforts made, on the value of the fees and costs payable to the Arbitrator or the Conciliator who did not complete his designated task for any reason.
- The provisions of these rules shall be effective as of 15 Jumada Al-Ula 1443 AH corresponding to 30 December 2020.
