B. ISLAMIC ARBITRATION IN THE UNITED KINGDOM: THE MUSLIM ARBITRATION TRIBUNAL MODEL

In the United Kingdom, binding arbitration takes place under the aegis of the Arbitration Act of 1996.[1] Like its American counterpart, the Act is premised on the notion that “parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.”[2] Under the Act, courts must respect parties’ contracts and enforce awards issued by an arbitral tribunal pursuant to a valid arbitration agreement.[3] The Act allows courts to refuse to enforce arbitration awards under circumstances constituting “serious irregularity.”[4] These include a tribunal’s failure to conduct the arbitration pursuant to a valid agreement and arbitrators’ failure to ensure the procedural protections relating to impartiality and fairness required under the Act.[5] When a reviewing court finds such irregularities, the Act permits it to remit the award to the arbitral tribunal for reconsideration, set aside the award, or decline to enforce the arbitral decision.[6] This legal arbitration framework provides one important means of empowering individuals and communities to conduct their internal affairs in accordance with their religious commitments.[7] In order to enjoy its benefits, arbitration tribunals applying religious legal norms must take steps to ensure that their decisions comply with the standards set by that framework and earn the respect of secular courts.

The MAT was established in 2007 to provide British Muslims with the opportunity to effectively resolve disputes in accordance with Islamic legal norms.[8] Although Islamic courts have existed in the United Kingdom for many decades, both under the institutional umbrella of the Islamic Sharia Council and as privately sponsored tribunals presided over by local religious scholars, these forums did not follow formal, transparent procedures or operate within any secular legal framework. As a result, their decisions were not legally enforceable, and litigants had to rely on the willingness of the disputants to adhere to tribunals’ decisions.[9] To remedy this, Sheikh Faiz Siddiqi, a barrister and the founding principle of Hijaz College, and Shamim Qureshi, a practicing Muslim and English District Judge, founded the MAT to provide British Muslims with a more effective means of dispute resolution in accordance with Islamic law.[10]

The MAT operates pursuant to Section 1 of the Arbitration Act of 1996, which provides that “parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.”[11] Like the BDA, the MAT developed innovative processes in order to ensure that its arbitrations would conform to the formal requirements of the Arbitration Act, garner the respect of British courts, and make judges more comfortable enforcing its rulings. Some of these measures represented significant departures from the fiqh-based procedural rules of traditional Islamic adjudication,[12] as well as from traditional tahkim processes, which are far less formal than MAT proceedings.[13] Muslim scholars have observed, however, that Islamic law can be understood to provide ample room for such procedural innovations as a means of enabling Islamic tribunals to operate effectively in a non-Muslim political and legal context.[14] By building on viable avenues for innovation in Islamic law, the MAT, like the BDA, has crafted an arbitration process that gives British Muslims the opportunity for effective dispute resolution services consistent with both British and Islamic law.

The MAT, like the BDA, has adopted a variety of legally sophisticated procedural protections designed to ensure fairness in a way that puts secular court judges at ease, yet that also remain within the bounds of Islamic law. Consistent with traditional Islamic adjudicatory practices,[15] and in accordance with secular arbitration laws, the MAT will not proceed on a matter until both parties have signed a legally valid arbitration agreement, which commits them to abiding by the MAT’s ultimate decision and provides an adequate basis for enforcement of any award issued by the MAT in a British court.[16] Once an arbitration agreement is in place, a plaintiff can commence MAT proceedings by submitting a formal request asking the MAT to hear the case.[17] This written filing must state the plaintiff’s claims and arguments in support thereof, contain the names of opposing parties and contact information for all the parties, and, if possible, list the documents and witnesses the plaintiff anticipates using as evidence in any arbitration hearing.[18] The rules provide that the MAT then serves notice on the defendant on behalf of the plaintiff, providing the defendant with information about the plaintiff’s claims and evidence, thereby permitting the defendant an opportunity to prepare an adequate response.[19]

The MAT rules expressly provide for several key procedural protections considered indispensable to a fair adjudication by English law. Thus, the tribunal must give all parties adequate notice of all hearings,[20] permit litigants to be represented by attorneys,[21] and provide each party with an adequate opportunity to be heard by presenting claims and evidence and by rebutting the arguments and proofs offered by their opponents.[22] The MAT rules further provide standards for taking evidence; although parties may present oral or documentary evidence in support of their cases, the tribunal is prohibited from considering any evidence that is not made available to all parties.[23] The MAT rules also work to gain respect from the secular courts by providing that every arbitration tribunal must consist of at least one Islamic law scholar and one barrister or solicitor of England or Wales, thus ensuring that the arbitration process is conducted in accordance with both British ADR law and Islamic fiqh.[24]

Of course, the content of substantive law remains unclear—just like in the BDA. The MAT steadfastly refused (as did the BDA and the Institute for

Christian Conciliation (ICC)) to allow the reviewing secular court to consider what substantive Islamic law it applies. A MAT rule states that

  • (1) In arriving at its decision, the Tribunal may consider but not be bound by any previous decision of the Tribunal.
  • ( 2) In arriving at its decision, the Tribunal shall take into account the Laws of England and Wales and the recognized Schools of Islamic Sacred Law.[25]

Because decentralization is an internally important feature of Islamic law,[26] the traditional Islamic adjudication process also did not include a formal right of appeal. Traditionally, the Islamic judicial system was not formally hierarchical,[27] and the decision of any qadi was considered final and binding. The MAT, unlike the BDA, has chosen not to break with this traditional practice, and does not include an internal appellate procedure. Nevertheless, acknowledging that its arbitration process operates within the legal framework created by British law, MAT rules expressly acknowledge that a party may apply for judicial review of its arbitral awards.[28] In this respect, the MAT follows in the footsteps of some Islamic arbitration panels in Ontario, which, before being banned under a 2006 law, did not provide for internal appellate processes, but expressly permitted parties to appeal awards to a Canadian court.[29] Although an internal appellate procedure might give courts greater confidence in the procedural fairness of the MAT arbitration process, the lack of internal review has apparently not negated the MAT’s legal credibility in the eyes of English judges, nor has it led to British courts refusing to enforce MAT awards.

Similarly, the MAT conducts its own arbitration processes in accordance with the legal requirements of British arbitration law to ensure that secular courts will have the legal authority to enforce its awards. In respecting these secular law standards, the MAT does not see itself as disregarding traditional fiqh procedures, but as building on Islamic law’s normative adjudicatory framework in light of contemporary views about what procedures best protect litigants and ensure just outcomes.

Like the BDA, the MAT has evidenced its respect for the secular legal environment in which it functions by admitting certain limitations on its own ability to act, based on the requirements of British law. Thus, the MAT affirms that "we believe in the co-existence of both English law and personal religious laws. We believe that the law of the land in which we live is binding upon each citizen ... Sharia does however have its place in this society where it is our personal and religious law.”[30] Similarly, the Islamic Sharia Council (ISC), a pre-eminent source of Islamic legal authority for British Muslims and an institution heavily involved in the facilitation of Islamic divorces, maintains that a couple must first document its receipt of a civil divorce from English judicial authorities before it will begin religious divorce proceedings.[31]

Similarly, although the MAT will exercise arbitral jurisdiction over civil and personal matters and resolve such cases in accordance with Islamic law, it will not adjudicate claims of criminal misconduct or apply corporal punishments prescribed by Islamic law for certain offenses.[32] Indeed, Islamic law precludes Muslim jurists from judging criminal matters or imposing corporal punishments for religious offenses in the absence of their being appointed to do so by the prevailing political authorities.[33]

The MAT, too, has embraced common commercial customs and equitable principles in its arbitration process, both to satisfy litigants and to gain the respect of British courts. Thus, MAT rules of procedure provide that “in arriving at its decision, the Tribunal shall take into account the Laws of England and Wales and the recognized Schools of Islamic Sacred Law.”[34] The MAT’s rules of decision include both Islamic and British standards, and it applies both, where appropriate, in order to arrive at effective legal solutions. The MAT’s approach follows in the footsteps of the ISC, which holds itself not bound to apply the established rules of any particular school

(madhhab) through taqlid,[35] but instead decides cases using takhayyur, an Islamic jurisprudential doctrine that urges jurists to rely on any of the traditional schools of Islamic law, or on marginal minority opinions about the law, in order to achieve compelling solutions in particular cases.[36] Additionally, the MAT and other Islamic arbitral tribunals have, according to Ihsan Yilmaz, been employing a sort of “neo-ijtihad,” which enables Muslim jurists to issue rulings based on direct engagement with the primary sources of fiqh—the Qur’an and Hadith—in light of contemporary conditions in the United Kingdom, instead of relying on the rules already established by the various schools of Islamic law.[37] This approach enables the MAT to incorporate accepted standards of equity and commercial customs into its decisions in a way that is consistent with both the substance and the broader methodological concerns of Islamic jurisprudence.[38]

As in the case of the BDA, the MAT’s success has been due in part to its ability to procure dual-trained individuals to head its tribunals. The MAT’s founder, Hazrat Allama Pir Faiz-ul-Aqtab Siddiqi, is a British Muslim scholar and a barrister; he is also the principal of Hijaz College, a British Muslim school that combines traditional Islamic education with the British National Curriculum. The school also offers students the opportunity to receive an LLB degree, which qualifies graduates for the Bar-at-Law Finals and the Solicitors Law Society Legal Practitioners Course, which allows one to practice law in England.[39] Another MAT presiding judge, Shamim Qureshi, is also a judge in the Wolverhampton Magistrates’ Court.[40]

Although some MAT arbitrators are dual-system-fluent themselves, MAT rules further ensure that every MAT arbitration panel is competent in both British and Islamic law by providing that each shall consist of a minimum of one scholar of Islamic law and one solicitor or barrister of England and Wales.59 The MAT also requires all of its arbitrators to be trained in a number of subjects related to dispute resolution, such as how to deal with adversarial parties, proper court behavior, and effective writing.60 This training is meant to parallel the expertise that secular legal education provides British judges.61 Although Islamic courts traditionally consisted of only a single judge, the MAT’s reliance on multiple judges with complementary fields of expertise is not entirely unprecedented. Muslim judges, or qadis, have always been expected to be fully competent in a wide range of judicial skills, and have been directed to be aware of their own limitations and to consult experts whenever necessary.62 In the early twentieth century, Bediuzzaman Said Nursi argued that individual judges were no longer effective due to the complexities of the modern era, and that committees of jurists would be better.63 More recently, Fethullah Gulen, a Turkish scholar whose work focuses on Islam and Islamic law in the modern era, argued strongly for the use of ijtihad committees consisting of scholars from different disciplines and with different areas of expertise, reasoning that it is no longer possible for individuals to master all subjects.64

The MAT has taken an active role in the internal governance and external representation of the British Muslim community.65 In addition to serving as a dispute resolution forum, the MAT has taken an active role in developing religio-legal standards for British Muslims by instructing them about what Sharia might require in an Anglo context. For example, the MAT has become a leader in the field of dealing with forced arranged rule-sharia-cases-court-set-hardline-cleric-led-demonstration-against-Charlie-Hebdo. html (last visited Jan. 23, 2017).

  • 59. See Procedure Rules of the Muslim Arbitration Tribunal, supra note 35, § 10(1).
  • 60. See Rafeeq, supra note 34, at 124-25.
  • 61. Id.
  • 62. See generally Ghulam Murtaza Azad, Qualifications of a Qadi, 23 Islamic Stud. 249 (1984).
  • 63. See Ihsan Yilmaz, Muslim Laws, Politics, and Society in Modern Nation States: Dynamic Legal Pluralisms in England, Turkey, and Pakistan 135 n.3 (2005).
  • 64. See id. at 176.
  • 65. See Choksi, supra note 17, at 828 (“The MAT plays an active role in educating the Muslim and broader British community about the true nature of Sharia law by dispelling myths that evolve through the conflation of religious law with cultural customs.”).

marriages between British Muslim citizens and spouses in Muslim- majority countries such as Pakistan.[41] To alleviate this problem, the MAT suggested that British Muslims who want to bring a foreign spouse into the country first provide testimony before a panel of Muslim judges to establish that the arrangement is truly consensual.[42] The MAT also continues to work to educate the Muslim community that forced marriages are a cultural rather than religious phenomenon, and that they violate Islamic law.[43]

Additionally, in July 2013, the MAT assumed another internal religious and communal leadership role by undertaking an investigation in response to reports of the contamination of some meat certified as halal with pork. The MAT published its findings so as to offer British Muslims guidance and ideas for future improvements to halal certification.[44] [45]

Beyond leading within the Muslim community, the MAT also serves as an effective representative for it to the British government and public by portraying Islamic law as sophisticated, nuanced, effective, and contemporarily relevant. Sadakat Kadri, a well-known barrister and author of the book Heaven on Earth: A Journey through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslim World,70 has argued that Islamic courts such as the MAT are good for the British Muslim community, because they put Shari’a on a transparent, public footing and make it more widely accessible to those who want it.[46] As a result of the MAT’s efforts, British society has begun to accept Islamic arbitration, despite initial Islamophobia. In 2010, the MAT reported a 15 percent rise in the number of non-Muslims using Shari’a arbitration courts in commercial cases.[47]

  • [1] The Arbitration Act of 1996, available at http://www.legislation.gov.uk/ukpga/1996/23/contents.
  • [2] Id. § 6 (b).
  • [3] Id. § 30(1).
  • [4] Id. § 68(1)-(2).
  • [5] Id. § 33.
  • [6] Id. § 68(3).
  • [7] See generally Nicholas Walter, Religious Arbitration in the United States and Canada,52 Santa Clara L. Rev. 501 (2012).
  • [8] See Maria Reiss, Note, The Materialization of Legal Pluralism in Britain: Why ShariaCouncil Decisions Should Be Non-binding, 26 Ariz. J. Int’l & Comp. L. 739, 768 (2009).
  • [9] See Choksi, supra note 17, at 811.
  • [10] Id. at 812-13.
  • [11] See Arbitration Act of 1996 § 1(1).
  • [12] For a discussion on traditional procedures in Islamic adjudication, see Wael B.Hallaq, shari’a: Theory, Practice, Transformations 342-54 (2009); Vikor,supra note 3, at 168-221; Abdur Rahim, The Principles of MuhammadanJurisprudence According to the Hanafi, Maliki, Shafii and Hanbali Schools364-82 (1911).
  • [13] For a review of the traditional tahkim process, see Mohamed M. Keshavjee,Islam, Sharia and Alternative Dispute Resolution: Mechanisms for LegalRedress in the Muslim Community 67-69 (2013).
  • [14] See, e.g., Taba Jabir al-Alwani, Issues in Contemporary Islamic Thought202 (2005) (“Shari’a does not provide for a specific procedural system, but leaves suchdetails to the ijtihad and understanding of those responsible for ensuring that justiceis done.”); see generally id. at 196-225; Taha Jabir al-Alwani, Towards a Fiqh forMinorities: Some Basic Reflections (Anas S. Shaikh-Ali & Shiraz Khan eds., 2003)(developing a framework for a renewal of ijtihad, or direct engagement and interpretation of the primary sources of Islamic law, in order to develop religious law doctrinesthat take into account the conditions and realities of life for Muslims living in nonMuslim political and legal contexts).
  • [15] See Mohammad Keshavjee, Islam, Sharia, and Alternative DisputeResolution: Mechanisms for Legal Redress in the Muslim Community 67-68(2013).
  • [16] See Mona Rafeeq, Comment, Rethinking Islamic law Arbitration Tribunals: Are TheyCompatible with Traditional American Notions of Justice, 28 Wise. Int’l L.J. 108, 125(2010).
  • [17] See Procedure Rules of the Muslim Arbitration Tribunal § 2(1) (2010), MuslimArbitration Tribunal, available at http://www.matribunal.com/rules.php (last visited Oct. 3, 2016).
  • [18] Id. § 2(1)-(4).
  • [19] Id. § 3(1).
  • [20] Id. § 12.
  • [21] Id. § 13(1)-(2).
  • [22] Id. § 17.
  • [23] Id. § 14(1)-(6).
  • [24] Id. § 10(1).
  • [25] Id. § 8.
  • [26] Cf. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence 257(3d ed. 2003).
  • [27] Cf. Al-Alwani, supra note 32, at xiii-xiv (2003).
  • [28] See Procedure Rules of the Muslim Arbitration Tribunal, supra note 35, § 23.
  • [29] See Donald Brown, Comment, A Destruction of Muslim Identity: Ontario’s Decisionto Stop Sharia-Based Arbitration, 32 N.C.J. Int’l L. & Com. Reg. 495, 522 (2007).
  • [30] Values and Equalities of MAT, Muslim Arbitration Tribunal (2010), http://www.matribunal.com/values.html. This exact sentence is no longer on the website. Fora similar set of sentiments, see http://www.matribunal.com/values-and-principles.php (last visited Jan. 23, 2017).
  • [31] See Application to File an Islamic Divorce (Dissolution/Khula/Talaq), available at http://www.islamic-sharia.org/wp-content/uploads/2014/05/Khula_Application0216.pdf (last visited Mar. 3, 2017).
  • [32] Compare generally Leo Landman, Jewish Law in the Diaspora; Confrontationand Accommodation: A Study of the Development, Composition and Functionof the Concept of Dina D’Malkhuta Dina—the Law of the Kingdom (TheState) Is the Law (1968); see also R. Avraham Dov Kahane Shapiro, Teshuvot D’varAvrohom, no. 1:1 (3) (ruling that criminal matters are within the province of governmental authority and beyond legitimate beit din jurisdiction).
  • [33] See, e.g., ibn Naqib al-Misri, supra note 5, at 638.
  • [34] Procedure Rules of the Muslim Arbitration Tribunal, supra note 35, § 8(2).
  • [35] Taqlid (literally, “imitation”) refers to a method of Islamic legal decision-makingin which the jurist relies on the rules of law contained in the principal codified worksof his respective madhhab, rather than by directly engaging and interpreting the Qur’anand Hadith, the principle primary sources of Islamic law norms. See Kamali, supra note44, at 493-94, 501-03.
  • [36] See Ihsan Yilmaz, Law as Chameleon: The Question of Incorporation of MuslimPersonal Law into the English Law, 21 J. Muslim Minority Affairs 304 (2001).
  • [37] See Ihsan Yilmaz, Muslim Alternative Dispute Resolution and Neo-ijtihad in England,2 Alternatives, Turkish J. Int’l Rel. 117, 119-20 (2003). For more extensive discussions on neo-ijtihad, and the possibility of deriving Islamic religious law rulingsdirectly from primary source interpretation in light of contemporary conditions forMuslim communities in the West, see generally Jabir al-Alwani, supra note 32;Shammai Fishman, fiqh al-aqaliyyat: A Legal Theory for Muslim Minoritiesin Research Monographs on the Muslim World (Hudson Inst., Ser. No. 1, PaperNo. 2, 2006), available at http://www.futureofmuslimworld.com/docLib/20061018MonographFishman2.pdf.
  • [38] See Rafeeq, supra note 34, at 124-25.
  • [39] See About Us, Hijaz Coll., http://www.hijazcollege.com/about.php; LLB Law andBA Islamic law, Hijaz Coll., http://www.hijazcollege.com/llb-law.php (last visited Jan.23, 2017).
  • [40] See Robert Barr, Press Release, The Lord Chief Justice, Muslim ArbitrationTribunal, http://www.dailymail.co.uk/news/article-3391501/Crown-judge-
  • [41] Id. at 819-23.
  • [42] See Procedure Rules of the Muslim Arbitration Tribunal, supra note 35, at 13.
  • [43] Id. at 26; id. at 44 (“Arranged marriages have some grounding in Islamic law, butforced or coerced marriages have no foundations in Islamic law and shall be nullifiedunder the edicts of Islamic tenets.”).
  • [44] See Findings of a Public Community Inquiry, Muslim Arbi. Trib. (July 8, 2013),available at http://www.matribunal.com/downloads/MAT%20Public%20Declaration.pdf.
  • [45] Sadakat Kadri, Heaven on Earth: A Journey through shari’a Law fromthe Deserts of Ancient Arabia to the Streets of the Modern Muslim World(2013).
  • [46] David Shariatmadari, Sharia Law Compatible with Human Rights, Argues LeadingBarrister, Guardian (Jan. 15, 2012), http://www.guardian.co.uk/world/2012/jan/16/sharia-law-compatible-human-rights.
  • [47] Afua Hirsch, Fears over Non-Muslim’s Use of Islamic Law to Resolve Disputes,Guardian (Mar. 14, 2010), http:// www.guardian.co.uk/ uk/ 2010/ mar/14/non-muslims- sharia-law-uk.
 
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