The Application of Soft Law, Halakha and Sharia by International Arbitral Tribunals - ARIA - Vol. 23, No. 3-4, 2012
François Dessemontet, Professor Emeritus, University of Lausanne; Committee Member, Swiss Arbitration Association; Of Counsel, Dessemontet & Ghosn, Lausanne.
Originally from American Review of International Arbitration - ARIA
Professor Hans Smit combined the innovative legal spirit of American
teaching with the conservative doctrinal framework of European Law.
Comfortably overlooking the world of arbitration that connects these two legal
traditions, he would have enjoyed the questions of whether international arbitral
tribunals are free to apply a third system, neither common law nor civil law, but
soft law, and how religious law, if understood as “soft law” in the meaning of
“non-legal law” or “para-legal law” should be applied by them, if at all.
What soft law, halakha and sharia, or other religious laws have in common
may not be “softness” in the usual sense. They are, however, all systems of law
that do not originate in an Act of Parliament or in the case law of State courts,
with the exception of the codification of sharia in some Muslim countries and
sharia being declared applicable by the constitution or legislation of a State. This
is the case, for example, in Iran, Saudi Arabia, Sudan and might well be the case
in many more Middle East countries in the years to come due to the Arab Spring.
Further, what religious laws and soft law have in common is that they are not “the
law of the land” in the usual meaning of that expression in the United States or
England, nor “the law of a country” within the meaning of Article 1 of the Rome
Convention of 1980 on the Law Applicable to Contractual Obligations, and the
subsequent enabling legislation in the European countries. Therefore, the
problems raised for an arbitral tribunal that is requested to apply soft law and
religious law are similar in nature, regarding both the general acceptance of these
rules as applicable law and the restrictions on their efficacy that derive from
public policy and lois d’application immédiate.
Of course, this article only deals with international commercial arbitration and
does not encompass the particulars of family and inheritance law in Islamic or
Judaic arbitration (“beth din”). Thus, the Western endeavors to exclude the
application of Islamic law in England,1 Ontario2 and in a dozen U.S. states will not