Research Proposal on "Arbitration in Saudi Arabia and in the United States of America"

Research Proposal 12 pages (4223 words) Sources: 25

[EXCERPT] . . . .

After looking at a Saudi Grievances Board decision-review, are there any characteristic applications or interpretations of the Convention under the law of Saudi Arabia, especially pertaining to the legal matters of: (a) public policy; (b) the constitutionality of regulations that apply the foreign arbitration awards' provisions; (c) reciprocity principle; (d) the possibility of dissolving the decision if an element of it is deemed as conflicting with public policy (the provision, however, must be severable) and (e) how far the judge is authorized to deal with the case's subject matter?

1. After assessing U.S. superior courts' decisions (i.e. of State Supreme Courts and Federal Court), are there any characteristic applications or interpretations of the Convention under U.S. law, especially pertaining to the legal matters of: (a) public policy; (b) the constitutionality of regulations that apply the foreign arbitration awards' provisions; (c) reciprocity principle; (d) the possibility of dissolving the decision if an element of it is deemed as conflicting with public policy (the provision, however, must be severable) and (e) how far the judge is authorized to deal with the case's subject matter?

1. What can one deduce after comparing the approaches of USA and Saudi Arabia? If considerable differences are present, can one justify them with regard to conflicting importance accorded to the contending ideals of: (a) societal values, (b) efficiency, and (c) justice to involved parties in specific cases?

Research methodology

This research will follow an analytical, comparative and descriptive methodology, and investigate judicial provisions regulating U.S. Federal Court and Supreme Court verdicts and Saudi Arabia's Grievances Board in arbitration award handling (Vadi 69).

1. Study design (type of study)

i. Comparative Law as a Research Method

The comparative research technique is utilized quite frequently, and is deemed important for many reasons. Comparisons are actually crucial and valuable in researches in the field of law for the purpose of determining systematic differences and similarities among observed regulations and, probably, for formulating and testing models and postulations on their causative relationships. Therefore, the method of comparative research denotes a distinctive, methodical, and jurisprudential technique that can be utilized for furthering new knowledge in relation to what is applied in legal systems and how it is applied (Orucu 30). Acquiring knowledge of the differences and similarities in legal systems under comparison helps achieve the above aim. This spells out precisely why comparative technique has been chosen for this study -- it will explore the similarities and dissimilarities between Saudi and U.S. courts' role in enforcement of foreign arbitration awards, and may be utilized for determining the best means of implementation of foreign arbitration award provisions. A comprehension of Saudi's system and recognizing the underlying factors contributing to its difference from other systems is particularly crucial in this regard (Ambrus 353).

As this study intends to determine U.S. and Saudi arbitrators' rights and responsibilities, a comparative mode will be most effective in fulfilling the aforementioned objectives. Furthermore, the U.S. is deemed as a 'pro-arbitration' nation; thus, employing the comparative technique for studying arbitration-related regulations and rules will prove considerably beneficial, since one can view it as an appropriate yardstick. In fact, America's pro-arbitration policy renders it an ideal standard for comparing with an unfamiliar system (about which many Western as well as Eastern researchers know little or nothing, and what they know may likely be incorrect) (Vadi 67).

Hence, comparison can offer a suitable way to explain Saudi's arbitration process, by delivering a familiar and standard 'pro-arbitration' prototype that will indicate whether Saudi's courts and rules are pro-arbitration. Adoption of comparative technique provides further information to facilitate an understanding of Saudi Arabia's outlook on foreign arbitration compared with U.S. laws. Also, a better grasp of why there are certain laws in Saudi, and what they intend, will be facilitated; lastly, it will foster development of respective national regulations by way of enhanced mutual access to correct information and more accurate interpretation (Vadi 70).

Comparison will prove helpful as it is founded on the court's actual role, by examining court provisions pertaining to foreign arbitration in both nations. This renders adoption of a comparative approach highly valuable, particularly in connection with understanding international arbitration-related international principles and rules, in case both countries involved are presently party to the Convention. Indeed, the method of comparative assessment has attained universal approval and application, and has demonstrated many advantages. In other words, this mode has offered information, which facilitates legal systems' differentiation, generally as well as specifically. Common laws applicable in a majority of nations are identified via the method of comparative law. Kiekbaev demonstrated this process's application; he further suggested that the method can be regarded both as an academic discipline and a science (Kiekbaev 17; Orucu 30).

ii. Case Studies

This study will delve into court cases for ascertaining judiciary's position in both Saudi and U.S. in relation to foreign arbitration award; every publicly accessible case from 1983 through 2012 (relevant to the study) will be gathered from both nations. Saudi Arabia's accession to the Convention took place in the year 1994; therefore knowing the position of the court prior to, and after, becoming party to the Convention is imperative. The aforementioned subjects will assist with evaluating the actual position of U.S. and Saudi Arabian courts from 1983-2012 (Obioha 184).

1. Study population and sampling

The two nations, Kingdom of Saudi Arabia and United States, have been chosen as this study's population for the following reasons;

The U.S. was one of the first nations to sign and accede to the New York Convention -- the greatest effort on an international scale concerning foreign arbitration award approval; in contrast, Saudi Arabia can be considered a fairly newer signatory and can possibly profit from taking into consideration how the Convention's provisions have been put into operation in the U.S. Thus, it is vital to scrutinize U.S. and Saudi judicial framework and stakeholders regarding the Convention's implementation. Moreover, both the nations may gain significantly from this comparative study, which will offer judges in the two countries an example of their counterparts' experience of their in a different jurisdiction. Further, comparison of a Western nation's experiences (U.S.) with the experiences of a Muslim nation (Saudi) is crucial for discovering similarities and dissimilarities. There may be a possibility of enabling arbitration implementation between the two nations, particularly with the upsurge in arbitration being used as a dispute settlement means, and with growing economic significance of Middle Eastern countries (especially Saudi Arabia). Also, looking into developed countries' experiences, (U.S.) is vital to locating their laws' strengths and shortcomings, as well as strengths and shortcomings in their application, in regard to their judicial system, for being able to gain information and understanding from these experiences and transmit this knowledge to developing nations. Hence, case studies relating to foreign arbitration awards approval will be employed comprehensively in this study (Baamir 18; Park 25).

One must bear in mind that, as per Chapter III Part III Article 13(g) of the 2007 Saudi Grievances Board System, the Board handles foreign arbitration awards and foreign courts' rulings in an identical way. A much higher number of overseas court decisions are presented before the Board compared to that of foreign arbitration awards; consequently, there are numerous decisions not relevant to business (e.g. family cases), which this research will evaluate, as it reveals trends of the Board in implementation of substantive and formal conditions in application of foreign arbitration awards (Ligeti 35; Lalive 55).

Lastly, this study will also produce and explore a few findings of Western researchers on implementation, by Saudi courts, of foreign arbitration awards provisions, where the research scholars have a major misunderstanding of Saudi courts' functions in relation to this matter. Such a step is essential for ascertaining Saudi courts' real role in implementing foreign arbitration awards provisions, as well as identifying the reasons behind such misinterpretations and hitches in these researches (Alibekova and Carrow 275; Lalive 63).

1. Data collection methods and instruments

This study necessitated an evaluation of judicial and legal rulings issued by U.S. and Saudi courts on foreign arbitration awards enforcement from 1983 to 2012. Regrettably, no judicial Saudi Grievances Board publication series could be found. Owing to absence of officially issued rulings, judicial orders of the nation will be obtained from libraries and other resources. One can hope to obtain information on substantial number of judicial rulings from judges and the Grievances Board's old library. Unissued 1407 AH Provisions Set will be utilized, as will provisions extracted from Grievances Board Library archives (Unissued Commercial Audit-Circuit Principles: Guideline Principles and Case Law, from 1987 (1407 AH) to 1999 (1419 AH)). Besides, there is a dearth of Saudi Arabian court decisions in this particular field of law, leading to utilization of sources from jurisdictions that have similar legal systems to Saudi (Alibekova and Carrow 280; Zekos 53).

Finding data on U.S. arbitration rulings is anticipated to be relatively simpler, with regard to availability and access.… READ MORE

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