The Interaction between Shariah and International Law in Arbitration

I. INTRODUCTION "Canadian judges soon will be enforcing Islamic law. . . such as stoning women caught in adultery" began a recent WorldNetDaily article.1 A prominent British newspaper headline also direly predicted Soon We'll All Be in a Burqa2 Journalists penning these attention-getters were not referring to the upshot of a territorial invasion by "fundamentalist" Muslims, but to the possibility that religious tribunals applying shariah, or Islamic law, could soon be adjudicating certain classes of personal civil disputes in the Canadian province of Ontario. These journalists' visions appeared to materialize into reality in December 2004, when Ontario's Attorney General endorsed the establishment of Islamic arbitration boards with the ability to utilize religious principles that comply with provincial and national laws.3 Ontario thus seemed poised to become the first Western jurisdiction to sanction the use of shariah within a secular legal system. Western nations with burgeoning Muslim populations have accordingly been tracking this novel legal situation,4 which recently culminated in the Ontario government's surprising effort to ban the use of all religious law in arbitration.5 Supporters of the shariah proposal premise their arguments on the Ontario Arbitration Act ("OAA"), under which individuals can agree to vest dispute resolution authority in religious arbitrators, whose decisions are summarily enforced by Ontario courts. However, Ontario Premier Dalton McGuinty is currently seeking to pass legislation prohibiting religious law from being employed in arbitrations.6 This Development analyzes the extent to which the freedom to arbitrate using shariah is sustainable in light of international law. Part II provides background information about the OAA and shariah while Part III analyzes shariah within the context of international law, focusing on its conformance or lack thereof with relevant United Nations ("UN") promulgations. Part IV evaluates possible problems arising from the use of shariah and considers measures that may rectify these while benefiting Muslims and the broader community. The Development concludes that Islamic laws governing business dealings comply substantially with international law and are conducive to being utilized in arbitration agreements, regardless of the secular character of state laws. Thus, Muslims seeking to implement a comprehensive shariah-based arbitration scheme in a predominantly non-Muslim jurisdiction should first pursue the modest objective of achieving governmental acceptance of Islamic commercial law before lobbying for official recognition of controversial Islamic family law principles. II. THE ONTARIO ARBITRATION ACT AND SHARIAH The OAA was originally enacted to alleviate the burden of backlogged Ontario courts by allowing parties, particularly sophisticated ones involved in business dealings, to appoint a third party to adjudicate disputes between them.7 However, religious groups lobbying for state recognition of their informal arbitration tribunals began invoking the OAA, along with the principles of equality and multiculturalism embraced by international bodies like the United Nations, to support their position.8 The OAA notably conditions a provincial court's enforcement of an arbitration decision upon a showing that the standards of "equity and fairness" have been satisfied.9 The statute operated with minimal controversy for a decade, but as Ontario's Muslim population nearly doubled from 1991 to 2003, Muslims increasingly began resolving disputes through informal religious tribunals employing Islamic law.10 Then, after discovering that the OAA could confer state legitimacy on religious arbitration decisions, a group of Muslims established the Islamic Institute for Civil Justice ("UCJ") to empanel officially-recognized religious arbitrators who would apply shariah at the request of disputing parties in certain civil cases. But in late 2003, several Muslim and human rights groups urged the Ontario government to forestall the IICJ's operation, alleging that the IlCJ-selected panelists would reach decisions by using rules that violated international law. …