Here, however, matters become in an Arab context particularly complicated, and the whole Weberian theory comes back to the fore with a vengeance. Arbitration remains an exception, in the settlement of intractable disputes, to the judicial process. As any exception, it does not operate outside the framework of reference imposed by the main rule, which is judge-made decisions. We shall examine some of the details of this proposition through the philosophy behind the recourse to arbitration, and, in the second part, through some examples drawn from comparative arbitral practice in the Arab world. The paper concludes with a few suggestions to improve upon the present system.
Arbitration means the avoidance of the judicial system.
Reasons may vary. It would normally be cheaper to go to the LCIA or to the ICC than to the British or US courts, and while lawyers are needed in big commercial cases, the time factor of a quicker process would bring costs down. Each of these five reasons applies with some difficulty in the Arab world, where the reliability of justice suggests several contradictory manifestations of the rule of law. In a region which has been submitted to repeated and violent turmoil in the twentieth century, the rule of law has time and again been undermined by the lack of independence and authority of the judiciary. But the lack of authority of the courts in the constitutional field has affected the less controversial arena of commercial law, as has the general system of patronage which is rampant in the region.