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Globalization of the world economy over the past few decades has effected a drastic transformation in transnational commercial relations across the world; the Middle East and North Africa (MENA) are no exception to this phenomenon. Trade and investment are booming in the region and these transactions reach far beyond the hydrocarbons industry.
An unprecedented increase in private international commercial transactions has been accompanied by a boom in transborder and transnational commercial disputes. The exigencies of globalization and international trade in today’s world have made it imperative, in order to facilitate international trade and commerce, that neutral forums for dispute resolution be established. Consequently, in the context of international commerce and investment, arbitration is increasingly resorted to by parties.
The ability of international arbitration to be a truly effective means of resolving disputes in this context hinges, necessarily, upon the ability of parties to obtain assistance from domestic courts when such assistance is needed, to otherwise be free from judicial interference and, finally, to be able to enforce arbitral awards in their respective countries once they are rendered.
The practice of arbitration of private disputes is not new to MENA countries. Arbitration has long been recognized as a legitimate and culturally accepted practice of dispute resolution, dating back to dispute resolution practices of the early Islamic period, and even the pre-Islamic era. International commercial arbitration, and its cultural and juridical acceptance, is a more recent and complex phenomenon nonetheless on the rise in MENA countries.
It is now standard for arbitration clauses to be included in contracts governing international transactions and there is a growing consensus among MENA merchants engaged in international trade, along with their commercial counterparts in the rest of the world, that international arbitration is preferable to litigation in domestic courts for purposes of resolving private commercial disputes.
While subject to some qualifications and restrictions in some instances, in many, if not most, MENA countries, arbitration clauses can be included in contracts with government entities engaging in commercial transactions. Additionally, conferences, seminars, and training programs in international arbitration are on the rise, and various international arbitration centres have been established. The advantages from the perspective of private parties are tremendous: Parties can elect which law will apply to disputes arising from their transactions, and they can remove themselves from the constraints and biases of parochial attitudes in national courts.
There is also an increasing acceptance by national courts of international arbitration standards, such as the principle of Kompetenz-Kompetenz, recognising the right of arbitrators to decide their own jurisdiction and the separability of the arbitration clause. More frequently, courts are granting assistance and support to international arbitrations and are more receptive to enforcing foreign awards. This book is a comprehensive guide to arbitration in:-