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Islamic law on arbitration of ip
Islamic Law And Its Impact On Arbitration Of Ip Cases In Middle East With Special Reference To Jordan
The law of intellectual property is one of the areas of law that has emerged in Jordan relatively recently. The reasons for such late emergence of intellectual property law in Jordan are that there were no sufficient conditions for development of this area of law in this jurisdiction.
Due to this fact, courts in Jordan were hardly able to decide such cases because of their complexity and lack of necessary skills and knowledge of judges in respected area of law. It is for this reason it seems that Jordanian legal practitioners saw the necessity of establishing courts which would adjudicate such cases.
The law of intellectual property is one of the areas that pose several challenges to trade area, where sellers of unauthorized products or products which breach intellectual property rights are widespread. It is inevitable truth of most Arab countries and in this respect it seems that position of intellectual property legislation saw its goal.
Some would ask: Why would Jordan need intellectual property law at all? It does not have such potential in order to enforce such complicated legislation and procedures. The answer lies in increasing importance of Jordan as a financial and trade center of Middle East, which would compete and challenge such centers as U.A.E. and Qatar.
In order to ensure such position in market, Jordan, first, has to ensure that legislation is in harmony with international trade and financial legislation. Amidst them, intellectual property law, if not most important, but occupies significant place to such an extent that it has to increase awareness and skills in this area.
Simultaneously, one of the important and flexible methods of alternative dispute resolution as arbitration has to play here crucial role. Arbitration is one of the areas of alternative dispute resolution, necessity of which has increased along with globalization of international trade. It has been seen as one of the areas which can significantly simplify international trade procedure without bringing unsolvable complexities into the business which has already gone into complexities.
The arbitration of cases related to intellectual property is different and complicated matter, which cannot be explained with reference to arbitration of normal and common cases that emerge in the course of international or local trade. It requires lawyers which are not only fluent but also skilled in matters of IP law and practice. Such lawyers, the amount of which is few in Jordan, can be and should be trained in this area in order to ensure the integrity of arbitration procedures in IP cases.
As a rule, majority of companies and lawyers cannot trust to state courts, which would consider intellectual property cases along with ordinary cases and are subject to inevitable error by doing incorrect analogies in decision of such cases. Usually parties which address their cases to state courts are usually unsatisfied not only with level of knowledge of judges in intellectual property cases but also with complexity of procedure.
In this sense, one should realize the importance of arbitration methods for adjudication of intellectual property cases. Jordan, it seems, have realized the serious threat posed by this problem and have taken number of measures in order to respond to this challenges.
One of the notable measures is certainly sending law students abroad in order to prepare future judges specialized on intellectual property disputes. This has been done effectively and majority of students are in prominent institutions which are really strong in this area of law. Second is creation of respective legislation in this area, yet there are some gaps which are inevitable and these gaps should be filled in order to harmonize Jordanian legislation in the field of arbitration and IP law.
Jordan has examples to learn from and it is its closest neighbors such as U.A.E., Qatar and Bahrain. These countries have foremost skills and experience in these fields of law. It is not only explained by abundance of their experts but also rapid expansion of their economies and integration into the world economy.
In this respect, Jordan is in more convenient position than other countries since even the culture of its neighbors is identical to Jordan. The similarity in culture and tradition is one of the factors that make harmonization of Jordanian IP legislation much easier and painless.
Besides, the lack of experience and knowledge not only in IP law, but also in arbitration process in IP case makes Jordan vulnerable to the challenge posed by the legal world of these neighbors. It is for this reason; the necessity of this dissertation is realized.
There is also Islamic factor that raises issue. Since Jordanian constitution recognizes Islam as a religion of state and due to historical circumstances when Islamic law dominated Jordan for centuries, it raises question: Has Islamic law influenced emergence and development of arbitration in Jordan as well as of intellectual property law?
In this respect, Akhtar remarked: “there exist considerable variations in the Middle East on the incorporation and application of arbitration laws and the practice and procedure in enforcing arbitral awards, which are complicated further by the differing interaction between Shari'a law and Western systems of law in each country”.
Therefore, the major goal of this dissertation is to examine whether Islamic legal principles in fact had an impact on development of arbitration and intellectual property law in Jordan. It will be tested on the basis of case related to IP law decided in arbitration courts of Jordan. The importance of this topic is realized in the context of rising importance of Jordan as emerging economic and financial leader in Middle East. It is also realized due to the fact that Islamic law is a dominant system in contemporary Middle East.
This dissertation consists of four parts: (i) first chapter briefly examines the basic tenets of Islamic law; (ii) second chapter briefly examines arbitration system in Jordan; (iii) third chapter briefly analyses intellectual property law in Jordan; and (iv) final chapter, an important one scrutinizes Jordanian intellectual property disputes arbitration for compliance with Islamic law.
Overview Of Jordanian And Islamic Law
Jordan is one of the countries in the world that inherited several features of different legislations at a time. One of the major influences was Ottoman legislation, since Jordan was under their dominancy for almost 700 years. In this respect, it can be said that it has been influence not only by Islamic law, which was the law of Ottoman empire but also by features of unique Ottoman law, which coexisted in one line with Islamic law.
Legislation And Judicial System In Jordan
Once Jordan became a subject of European colonization in 19 century, it inevitably embraced some features of European legislation. Yet, at present time, Jordanian legislation is surprising mixture of European and Islamic elements.
The system of government in Jordan is parliamentary monarchy. Yet, it should be noted that monarchy in Jordan is almost absolute since all powers are vested in the King of Jordan who is considered to be direct descendant of Prophet Muhammad (S.A.V.)
As in other countries of the world, the power in Jordan is divided into three branches, namely, legislative, executive and judicial. However, unlike other countries King may interfere within functioning of legislative power or other in order to ensure his absolute status.
The constitution of Jordan openly declares Islam as the religion of state. However, upon the close examination of Jordanian legislation, one cannot call it Islamic state since it contains elements which are contrary to Islamic legal principles.
Unlike Saudi constitution which declares Islam as a source of law, Jordan constitution declares Islam only as a religion of state. It is, however, not clear what it implies. Nonetheless, one can see the consequences of Islam being declared as a religion of state, in the legal system, where there is duality of courts.
Jordanian courts are divided into secular and religious courts. While religious courts are not only Islamic but also ecclesial or Christian courts, which are free to decide family matters of their respective religious communities. The competence of religious courts, including Islamic, are not extended to the matters of commercial and administrative law.
Therefore, matters pertaining to commercial or administrative law are decided in secular courts. Officially, Jordanian constitution declares that there are three types of courts: (i) civil courts; (ii) religious courts; and (iii) special courts. Yet, civil courts also hear criminal cases along with civil cases and cases of administrative field.
Religious courts are divided into Islamic and courts of other non-Muslim communities. Both of them hear cases within scope of their competence. It is interesting that Sharia courts also hear cases which are related to the compensation of blood money where one of the parties are not Muslims. Compensation of blood-money, otherwise called diya, is one of the old features of Islamic criminal law and it is surprising that it is not in competence of secular courts but religious.
The constitution does not define how special courts function, leaving this matter to the law. Yet, there are tribunals which are designed to interpret law and one of them is High Tribunal, the purpose of which to interpret constitution when required by government.
It is also necessary to provide brief overview about Shari ‘a, which occupies significant position in Jordanian legislation. Shari'a, otherwise called Islamic law, is one of the ancient systems of law that has been preserved since 7 century A.D. with some modifications.
The sources of Shari'a, according to Muslim belief, are Qur'an and Sunna. First being Holy Book of Islamic religion and second are traditions or precedents of Prophet of Islam. Besides, official Islamic dogma declares that Islamic jurisprudence functions according to four sources of law, Qur'an, Sunna, ijma and qiyas. Ijma, otherwise called consensus is being interpreted differently by four schools of Islamic law and same goes with qiyas, which is otherwise called analogy. Four schools of Islamic law that has emerged at different periods of time during first century of Islam, mainly diverge upon interpretation of major or secondary sources of Islamic law.
Islamic law does not recognize freedom of contract and prohibits such elements of trade and economy as charging interest, fortuity and gambling. In order to comply with these principles, Islamic lawyers has developed certain methods and forms which would allow Muslim to operate in one or another way in business world.
One of the remarkable features of new Islamic jurisprudence is creation of Islamic banking, which replaces interest with profit-and-loss sharing concept, Islamic insurance that operates in almost similar fashion and other new concepts as Islamic bonds, otherwise called sukkuk.
As far as intellectual property concerned, Islamic law protects inviolability of property as well as its manifestations in different forms. The same applies to any form of intellectual property, be it trademark or invention.
Arbitration in Islamic law is unique, since arbitration has been inherent to Arab culture and was called hakama. Hakams were arbitrators in ancient Arabia and judged according to Arab customs and traditions. Therefore, there is nothing new in arbitration which is not familiar to Islamic lawyers.
In last century, the position of Islamic law in disputes that were decided in arbitration courts was widely ignored. It is evident from several cases. In Petroleum Development (Trucial Coasts) Ltd. V. Shaikh of Abu Dhabi, Lord Asquith, the arbitrator ironically observed: “…it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments”.
Another remark, done by arbitrator in Ruler of Qatar v. International Marine Oil Company Ltd., was bitterer and arrogant: “…I am satisfied that the [Islamic] law does not contain any principles which would be sufficient to interpret this particular contract”.
Such excesses and bitter remarks were summed up and characterized in the following terms: “In general, the legal community throughout the Arab world is still manifesting its hostility to transnational arbitration mainly as a result of the great publicity devoted to the criticism of certain unfortunate arbitral awards rendered as of 1951 by western arbitrators who excluded, with terms of a humiliating nature, the application of the national applicable legal systems of countries like Abu Dhabi or Qatar”.
It should be also noted that Jordanian legislation does not fully implement precepts of Islamic law such as prohibition of interest or insurance. There are banks and insurance companies in Jordan which operate according to Western principles of banking and insurance. The companies and banks in Jordan are free to operate in the mode they choose to be most efficient for them. There is no hindrance on the part of Jordanian government in this sense.
Defining Islamic Law
There is no single or unified definition of Islamic law. Various scholars offer various definitions. I shall not go into each definition offered but shall arbitrarily explicate some of them. One of the famous scholars of Islamic law, Joseph Schacht offered an interesting definition for Islamic law: “Islamic law is the epitome of the Islamic spirit, the most typical manifestation of the Islamic way of life, the kernel of Islam itself”. Goitein, it seems, offered more precise and comprehensive definition: “Islamic religion is characterised by the prominence of legal conceptions in its systems: The Shari'a, or holy law, is its very essence and Fiqh, or religious jurisprudence, is its science (‘ilm) par excellence. The minute observation of many commandments is its most conspicuous practical aspect; the free fellowship of religious scholars, who do not need authorisation by any government to interpret, develop and apply its law, is its most representative body, and even purely legal sections of the Fiqh are studied as an act of worship”. These two definitions are not exhaustive but reflect true essence of Islamic law. Schacht's ‘way of life' and Goitein's ‘religious jurisprudence' constitute what is called Shari'ah in Arabic.
Moreover, Islamic law cannot be compared with common or continental legal systems. It is because latter do deal and embrace all areas of law, whereas Islamic law mostly deal with private law, leaving aside public law. Therefore, the claim of some countries that since their legislation is based on Shari'ah, their law is being regulated by divine law is not correct. The Shari'ah only applies to matters of private law in these countries and the public law has been imported from Western models.
The majority of scholars have long been recognizing Qur'an as a major source of Islamic law, sometimes without examining what it stands for. It was Schacht who first suggested that Shafii, prominent Islamic jurist, paid merely lip-service to Qur'an as a source of law in his jurisprudential theory. Certainly, major principles of Islamic law has been deducted from Qur'an but it is only a major and in a number of cases, we discover that Muslim jurists are dependant or totally reliant on other sources rather than Qur'an without hesitation.
The holy book of Islam or Muslims all over the world, Qur'an is believed by Muslims to have been revealed via Archangel Gabriel to Muhammad, who is regarded by Muslims as both Prophet and Messenger of God. Qur'an is law but law in a spiritual sense. If you ask a Muslim: What is your law (Shari'a)? He or she would respond: “Qur'an” without realizing whether it is spiritual or actual law.
For the purposes of present study, Qur'an is a source of law but to a limited extent since a major proportion of rules and judgments is being extracted from other sources of law and via different methods of legal reasoning. It is not however realized by ordinary Muslim as such, and even by Muslim jurist, who would suggest that sources for such rulings is Shari'a and all rules, embodied in Shari'a are immutable and should not be a subject of any challenge by anyone. Before turning to critical points, it is crucial to explore basics of Qur'an.
Qur'an is the holy book of Islamic religion. It is said to have been revealed during 23 years, once Prophet Muhammed started his mission among Arab people. The Qur'an derives from the word ‘qara' which denotes in Arabic, reciting or reading. It is also asserted that with a same meaning it is cited in Old Testament in Hebrew language. There are other names which are designed for Qur'an, such as ‘Qur'an al-Majid' or ‘al-Qur'an ash-Sharif' or ‘Furqan', etc. For the purpose of present study, it shall be called Qur'an, which is rather easy to refer and this way we shall avoid confusion.
The divine legislation is said to have been established through revelation of Qur'an in stages as I have mentioned earlier. The modern scholars as well as classic jurists were still unsure about precise role of Qur'an as a source of legislation. It is not clear whether the role of Qur'an corresponds to the hierarchy where it has been hoisted to the primary position. In fact, Qur'an has never been a primary source as we understand a primacy in modern jurisprudence. Muslim jurists would often rule according to verse of Qur'an but not a principle or spirit that it implies. They would pay a lip-service to Qur'an as a source of all legislation, but in fact they would disregard those rules of Qur'an that should have been regarded in specific occasion.
The precise role of Qur'an is difficult to define; it is because the primacy of Qur'an has been overshadowed by other sources and methods of law. Qur'an has always been mentioned along with Sunna, second sources of Islamic law which we shall have occasion to discuss in the next paragraph. In order to demonstrate the position of Qur'an as a source of law, let us look at some examples of utilization of Qur'an in classic Islamic jurisprudence.
The Prophetic Traditions or hadith as called in Arabic form a second source of law in hierarchy of sources of Islamic law and jurisprudence. It does not only occupy this position indeed but sometimes shares dominancy with Qur'an. The difference that emerged between Muslim jurists and later led to establishment of schools of law was caused by diverging interpretation of Prophetic Tradition. From liberal approach of Hanafis to strict compliance of Zahiris, they all dispute on nature of Prophetic Traditions as a source of law. Sometimes their conflict went as far as one realise that it is rather absurdity than logical argument.
The word ‘ijma', which is basically translated as ‘collecting' or ‘assembling', in a legal sense has caused a lot of debates over its validity. It is sometimes viewed as a consensus of either jurists or Muslims in general. Some assert that it is consensus of early Muslims - Companions over common postulates of faith and religion.
The consensus might be reached if it is unanimously adopted in practice or ‘custom' as in the case of international law. Second, consensus might be uttered in respect of certain ruling by majority of either scholars or jurists. Finally, it can be ‘e silentio' support for certain opinion by majority of jurists that have the right to adjudicate their independent opinion.
It is not clear from Islamic jurisprudential theory when ijma should be employed and what certain conditions are. Some jurists, Hanafi, for instance, usually in their judgments, say ‘there has been consensus on this issue' or ‘question' but they never clarified how and why such consensus has been reached among them.
We also do not know whether we may employ ijma concept in modern context and whether it shall be binding on all Muslims or adopted by them as a constituent part of Islamic law. In Sunni jurisprudence, we know that by way of ijma, certain jurists united into groups affiliated with dominating opinion of single jurist, which later became known as ‘schools of law' or ‘madhahib'. It has also been asserted that ijma on common legal issues has been reached in eighth century by respective founders of ‘madhahib'; there is no way to re-visit these concepts or judgments.
When speaking of analogy principle in Islamic law, it is not clear whether it is absolute or not or whether it is logically applicable to all cases. The word ‘qiyas' itself means ‘to compare' and it is regarded as one of the major sources of Islamic law.
Islamic jurists themselves stipulate four predominant conditions of analogy:
The precept or practice upon which it is founded must be of common (amm) and not of special (khass) application;
The cause (‘illa) of the injunction must be known and understood;
The decision must be based upon either the Qur'an, the Sunna, or the Ijma;
The decision arrived at must not be contrary to anything declared elsewhere in the Qur'an and Sunna.
The fourth stipulation raises some concerns. As we have discussed earlier, there are a lot of contradictions between Qur'an and Sunna, and even within Qur'an and within Sunna. The jurists attempted to decide such contradictions by asserting that there cannot be hypothetically any conflicts between these sources and even within these sources; they exist and it is reality. This factor also serves as a great hindrance in deriving rules or judgments from primary sources of Islamic law.
Even though these rules has been developed and elaborated by jurists; there are still a lot of controversies with application of this principle. It is caused by a different degree of application in schools of law and conflict between jurists whether such analogy might be applied when the necessity in such application is clear. Thus, for instance, it is not clear why principle of justice embodied in Qur'an might not be equally applied to all subjects of Islamic state, be it Muslim or non-Muslim. Normally, Islamic jurist would object saying that since Qur'an is only for Muslims, its injunctions are only applicable to Muslims. There is no logic which might be applied but incoherence in reasoning, sometimes leading to absurd conclusions.
In present chapter, we have discussed general legal conceptions that exist in Jordanian and Islamic law. There is a big difference between them because of the nature of legislation. Islamic law is mainly religious, whereas Jordanian is secular; even though Constitution claims that Islamic is a state religion.
In majority of Islamic countries, a fact that Islamic is a religion of state is merely lip-service to Islamic as a religion of people. It does not go further than that, except some countries as Iran, Pakistan and Saudi Arabia. But even legislation of these countries demonstrates how secular they are in their nature.
It does not however mean that Jordan lack of Islamic legal taste; there are some aspects of Islamic law in Jordanian legislation, as we have seen previously. The matters of marriage, divorce, inheritance and religious endowment are mainly under realms of Islamic law. Yet, on the other hands, similar matters that arise with other religious communities are decided based on their respective religious law.
However, the matters which are related to arbitration and intellectual property are mainly based on secular, precisely on European model based laws. Therefore, purpose of forthcoming chapters will be to examine whether they comply with Islamic law in general.
Arbitration System In Jordan And Compliance With Islamic Law And Its Implications For Intellectual Property Law
This chapter summarizes the current state of arbitration system in Jordan and issue of its compliance with Islamic law. It is done with purpose to acquaint readers with main aspects of these systems and legislation, so he or she has full understanding when looking through forthcoming chapters.
Arbitration In Jordan
The arbitration process in Jordan is being regulated by special law - Law No. 31 of 2001 otherwise called Jordan Arbitration Law. It is not unique; neither has it been adopted from international law, but from Egyptian Arbitration Act No. 27 of 1994, which in turn has been adopted from UNCITRAL Model Law 1985.
The law consists of 7 parts and 56 articles. It can be structured thus: (1) General provisions (Articles 1-8); (2) Arbitration agreement (Articles 9-13); (3) Arbitration tribunal (Articles 14-23); (4) Arbitration proceedings (Articles 24-35); (5) Arbitral award and termination proceedings (Articles 36-47); (6) Nullity of arbitral award (Articles 48-51); (7) Enforcement of awards (Articles 52-56).
The Art. 3 makes the scope of law absolute; it extends to any arbitration proceedings in Jordan and to any cases whether they derive from contractual dispute or not. Neither does it differentiate between commercial or civil disputes; both of them are within scope of this law.
The Art. 5 allows not only contracting parties to choose the arbitration procedure but also a third party which shall be able to choose such procedure.
The Art. 8 explicitly prohibits the intervention by state courts; yet, it stipulates that the arbitration tribunal may ask the intervention of state courts where former needs the participation of experts, witnesses, etc.
As far as arbitration agreement is concerned, Art. 9 allows only those persons, be it physical or legal, which has legal capacity, to conclude such agreement. It does not allow arbitration on matters which are on “amiable compositeaur” basis.
The arbitration agreement is valid only if in writing, according to Art. 10a, yet, the form of written agreement is flexible. It can be contained in exchange of letters, faxes, etc. It has been also reaffirmed by Jordanian Court of Cassation which stated: “the arbitration clause as established should be written, clear and explicit as well, by virtue of Article 10/A of the Arbitration Law No. 31of 2001”.
The law also allows parties to render their dispute to arbitration whilst in state court, in which case state court has the right to refer to arbitration tribunal and its reference shall be viewed as arbitration agreement in writing.
As far as arbitration tribunal concerned, Art. 14a and b, establishes that number of arbitrators shall be odd, otherwise it is void. If there is a disagreement between parties then number of arbitrators is three.
Noteworthy, the law reaffirms the independence of arbitration clause, which is according to Art. 22, is not dependent on other clause of underlying contract.
The language of arbitration proceedings is Arabic but law allows the use of another language or other languages upon consent of parties, according to Art. 28a.
Most importantly, Art. 17 upheld the principle of impartiality and independence of arbitrators and in elaboration of this provision Court of Cassation further held: “all arbitral procedures, in which the challenged arbitrator has participated, including the arbitral award, shall be deemed void”.
These are the major aspects of arbitration law in Jordan. Besides, Jordan has also ratified the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards by the virtue of Jordanian Court of Cassation, where it was remarked: “It is understood from the Article (2) of Enforcement of Foreign Judgments Law No. 8 of 1952 that the foreign arbitral award which has been enforced and ratified by the forum court , shall be enforceable in Jordan in accordance with all the clauses and requirements, and does not conflict with any of the stipulated provisions of Article (7) of the said law”.
The ratification of New York Convention by Jordan should be viewed as positive development and attractive for the foreign companies who wish to deal with Jordanian companies or invest in Jordan. The same applies to IP disputes; any company which would challenge Jordanian company with the claim of breach of copyright or violation of other forms of intellectual property, are in convenience in the view of ratification of New York Convention.
However, in his study of issues pertaining enforcement, Haddad critically commented: “Turning again to Jordanian Law which provides, as has just been seen, that a foreign award must be enforceable in the place in which it was issued, which means that the award should have been reduced to a judgment in the foreign country”.
It implies that Jordanian legislation does not recognise validity of foreign judgement as enforceable in Jordan. But he noted that “this approach may be criticized since it may be difficult in practice or even impossible to achieve this goal in certain circumstances, particularly in institutional arbitration. In this type of arbitration, it may happen that the parties involved in the proceedings including the arbitrators, and all other relevant factors have no relation whatsoever with the place of arbitration except that the proceedings were conducted there. In such a case, the foreign court may reasonably reject to enforce the award rendered in its country, and that means that the award may not be enforced in Jordan either”.
In such dubious situation, it is unclear how Jordanian legislation on arbitration would cope with this kind of problem. It seems to be paradoxical situation because award cannot be enforced either domestically or locally.
It will also have some implication for enforcement of foreign arbitral awards on intellectual property rights since majority of arbitral awards may not be enforced in foreign country since its enforcement should be accomplished in Jordan because of object of dispute. In such case, it is difficult to predict how arbitration courts and moreover state courts would deal with it.
Enforcement Of Foreign Arbitration Awards In Jordan
One of the problems that foreign company may encounter in Jordan is the problem of enforcement of award related to IP cases in Jordan. It is clear that certain IP cases may intervene with public policy and in this regard it is nearly impossible to assert such possibility may not arise.
IP legislation in Jordan being in immature position sometimes may not offer effective solutions for parties which are from different countries. In this regard, one should closely take a look at public policy issues in Jordan.
According to IP legislation, certain names cannot be registered as trademarks in Jordan. However: what if the name of foreign company or brand coincides with the name trademark registration of which is illegal in Jordan? The company in this case would face difficulties in carrying out business and moreover it would face difficulties in enforcing award that has been rendered in foreign or international arbitration court.
The case of Mitsubishi in U.S. showed how difficult it is to determine whether one case is subject to public policy or not. It has changed the contours of arbitrability in U.S. but the question arises: can such case have implication for Jordanian arbitration system? One can answer positively, but one would be confused when it comes to IP arbitration.
IP arbitration, as it has been seen, is a difficult and complex matter. It cannot be simply adjusted as in the case of ordinary commercial arbitration. The IP legislation is diverse and this diversity may imply negative consequences for arbitration, since arbitrators should be expertise in all areas which derive from IP legislation.
In such case, it is necessary to produce efficient theoretical base for arbitration of IP cases which can respond to challenges of Jordanian business realities.
Another important factor is Shari'a; we all know that Shari'a represents an important tool of behavior in consciences of Jordanian people. Most of them are influenced by its precepts and by the virtue of their moral law they cannot trespass certain principles of Shari'a. It is also true when IP registration is concerned the trademark which is contrary to Islam. In such case, it is hardly possible to enforce any foreign judgment, outcome of which at any cost is likely to offend principles of Islam.
Unlike European countries, where religion has been separated from the state, Jordan is still considered an Islamic state at least on constitutional level. Given this fact, it is hardly possible to change this pattern since religion occupies dominant position in the lives of Jordanian people. They are compelled to respect its foundations and principles.
Even ruling dynasty of Jordan - Hashemite dynasty is considered to be descendants of family of Holy Prophet of Islam. Therefore any inappropriate formulation of trademark is likely to summon immediate reaction on the part of government.
Further, one of the other factors is a Palestinian factor; 45% of Jordanian population is of Palestinian origins. It implies that this part of population is unlikely to accept any dealings or awards which involve any company which somehow related to Israel or Hebrew nation. It is even despite the fact that Jordan has normalized its relations with Israel; Palestinian diasporas are still influential in Jordan and this fact cannot be simply overlooked.
These, what we would call, are Jordanian realities, with which, foreign companies are likely to encounter when enforcing arbitration awards, especially on IP legislation. They cannot be avoided, neither can they be suspended; they have to be dealt effectively and beforehand.
On the other hand, the picture of Jordanian arbitration opportunities on IP legislation is not as grey as it seems at the first glance. Jordanian government is committed to create all possible conditions for normal business within the country. All laws which were adopted in the field of arbitration and intellectual property are clear evidences of such commitment.
Those obstacles which are apparent in the course of recognition and enforcement of foreign arbitration awards should be regarded as temporary and it is hoped that they would be either harmonized or changed in the course of integration into international legislation.
Issue Of Compliance Of Islamic Law With International Standards Of Arbitration
The compliance of Islamic law with international standards of arbitration is longstanding issue. It has been debated that Shari'a is not only incompatible with international standards of commercial law but with human rights standards as well. It is however incorrect to assert that international arbitration standards is totally incompatible with Shari'a since there are certain rules of arbitration which are inherent to Islamic law.
Arbitration or tahkim, as it is termed in Arabic, has been one of the traditional methods of dispute resolution on the territory of contemporary Saudi Arabia, long before Islam has emerged. Along with war, tahkim has been a method, to which all pre-Islamic Arab tribes often resorted in order to resolve their inter-tribal disputes.
The Arab society, then, was based on, as Goldziher put, “the relationship of the tribes to one another”. “Membership of a tribe”, he elucidated, “was the bond which united people who felt that they had something in common; but at the same time it also separated them from other groups”. El-Ehdab, then, described how arbitration worked in that society: “The Arabs of Jahiliya (pre-Islamic period) knew arbitration because adversaries (be they individuals or tribes) usually resorted to arbitration in order to settle their disputes… Arbitration was optional and was left to the free choice of the parties. Arbitral awards were not legally binding - their enforcement depended solely on the moral authority of the arbitrator”.
After emergence of Islam and as Islamic law further developed and elaborated, the influence of arbitration dramatically declined. It is then judiciary that came to replace arbitration for long period; yet, mediation has been recognized as a method of dispute resolution for a long period.
In the wake of twentieth century, arbitration came as one of the important tools of dispute resolution. It has been effective tool for dispute resolution in oil concession disputes.
It is however an interesting case that has been made nowadays in respects of applicability of arbitration in Islamic law. They have been arguing that it is not only inherent but also a part of Islamic law. Yet, several countries, including Saudi Arabia, do not fulfill their obligations under international conventions on arbitration. They would seek different reasons to refuse recognition and enforcement of foreign arbitral awards and assert that it is contrary to public policy.
In this sense, it should be said that Islamic law is not compliant with provisions of international standards of arbitration. It is because certain types of contract, which seem to be normal in modern contract law, are prohibited in Islamic law.
Implications Of Arbitration Systems Of Some Arab Countries For Jordan
Case Of Saudi Arabia
At the present time, for instance, arbitration is important tool for resolution of disputes in Saudi Arabia. It is interesting however, how much weight Saudis place on Islamic law when stipulating rules of arbitration. It should also be noted that Saudis are much opposed to arbitration than other countries of Middle East. Arbitration is not as welcome here as it is in Jordan, UAE, and Lebanon etc. It has been generally observed in following terms: “In general, the legal community throughout the Arab world is still manifesting its hostility to transnational arbitration mainly as a result of the great publicity devoted to the criticism of certain unfortunate arbitral awards rendered as of 1951 by western arbitrators who excluded, with terms of a humiliating nature, the application of the national applicable legal systems of countries like Abu Dhabi or Qatar.”
Such alienation and opposition is realised due to decision which has been adopted in arbitration trial between Saudi Arabia and Arab Am. Oil Co. (ARAMCO). The outcome of this case limited significantly participation of Saudi companies in international disputes. The reason for that is offensiveness of decision itself for Saudis. It read: “Saudi laws had to be interpreted or supplemented by the general principles of law, by the custom and practice in the oil business and by notions of pure jurisprudence, because ARAMCO's rights could not be secured in an unquestionable manner by the law in force in Saudi Arabia”. Such exposition of Saudi law persuaded Saudis to adopt special regulation that prohibited Saudi government agencies from participation in international disputes.
In Saudi Arabia, arbitration is only applicable in the matters of property, finances and trade and such rule derives from basic consensus of all schools of law. In other matters, Saudi law makes clear: “Arbitration in matters wherein conciliation is not permitted, such as crimes, unlawful accusation in adultery between spouses, and all matters relating to the public order, shall not be accepted”. The matters of public policy should be understood in terms of religious precepts and moral rules.
Besides, Saudi legislation significantly expands the scope of matters which are not arbitrable. Particularly, it “prohibits the Services of the Commercial Register (the “Registrar”) from registering (without special authorization) any company which refers any dispute between the company and the Registrar to arbitration outside of Saudi Arabia”. Further, it “requires that all disputes dealing with commercial agency contracts must be brought before the Diwan Al-Mazalem and not be resolved through arbitration”. Finally it “stipulates that the Diwan Al-Mazalem shall have exclusive jurisdiction over disputes among foreign contractors or companies and their Saudi sponsor”.
Case Of U.A.E.
The question is however: how U.A.E. legists would deal when it comes to duality of Islamic laws and secularist laws pertaining intellectual property when adjudicating cases in arbitration courts? Unlike Saudi Arabia, U.A.E. does not impose restrictions on gender and religion of arbitrators therefore it is possible that arbitrators appointed would not be aware of current development in Islamic law, if it is applied in the case. On the other hand, there is a danger that a case which had civil sanctions in the beginning can turn out to be criminal case in the end. Therefore courts are faced with the problem of such uncertainty. Yet, in U.A.E. it seems such cases are being decided with reference to secularist laws in order to exclude any difficulties and misunderstanding for parties which come from foreign non-Islamic jurisdictions.
When it comes to rules of arbitration, the rule pertaining scope of arbitration encapsulated in Civil Procedure Code reads: “Arbitration shall not be permissible in matters, which are not capable of being reconciled. An arbitration agreement may be made only by the parties who are legally entitled to dispose of the disputed right”. It is realised from the first part of present provision that it is related to public policy exception but illuminated in simple terms.
It is however not clear what is meant by legally entitle to dispose of the disputed right. Does it speak about legal capacity of person, be it physical or legal? Or does legislation restrict the scope of persons who can resort their disputes to legal adjudication? It can be however either ways, legal capacity and limited scope of companies which are not able to resort their cases to legal adjudication.
Another difficulty which has already been discussed in connection to public policy is jurisdiction of arbitration courts. In this regard, Art. 2 of U.A.E. Civil Code declares that: ““one shall resort to the rules and principles of the Islamic law in the construction of the laws.”. It implies that law-making industry as well as issues of application of proper law during adjudication process wholly dependant on principles of Islamic law. It, as it has been evident before, represents certain difficulties related to duality of laws.
Such problems, as it has been seen, does not exist in Jordan, where Islamic legal principles prevail mostly in matters of family law and other related areas but not commercial law. In this sense, the arbitration in Jordan can be more convenient in Jordan than U.A.E.
Another issue which arises almost in all Islamic jurisdictions is an issue of charging interest. In majority of Islamic jurisdictions, such as Saudi Arabia, interest in business transactions has been prohibited unanimously, yet in U.A.E. by the virtue of court decision, it has been allowed only in case of delayed payment. The same goes with uncertainty or gambling, which is unanimously prohibited by Islamic law and in no way can be applied in business dealings.
Another important which is more beneficial and positive rather than negative in the context of IP arbitration is sanctity of contract. Contract, according to Islamic law, is sacred and should be fulfilled by both parties in good faith. It somehow echoes principles of utmost good faith laid in Carter v. Boehm by Lord Mansfield. Nevertheless, two concepts should not be mixed altogether, since in Islamic law, principle of good faith derives from notion of sanctity of contract, whereas in law of marine insurance, it derives from practical necessity and places larger burden on insured rather than insurer.
As far as liability of arbitrators is concerned, Art. 207(2) states: “If an arbitrator, after having accepted his appointment, withdraws without a good reason, he may be held liable for compensation”. This provision sets aside any provision of Islamic law and prevails in cases where arbitrator withdrew without excuse.
The choice of law does not represent a problem as it represents in Western countries, in matters of conflict of law, the law of UAE automatically applies. It is rather Islamic than secular perspective. The law which has been encapsulated in Qur'an prescribes to resort all disputes to the law of God, therefore, U.A.E. arbitrators should without any doubt resort their disputes to the law of U.A.E. which declares, as one may recall, Islam as a source of law.
Such automatic redirection in the case of conflict of law can create some problems. First of all, parties from certain foreign jurisdictions may not agree with such state of affairs as they may view their law to be dominating. It is especially felt in IP dispute cases; should it happen arbitrators would be compelled U.A.E. law, even though it is contrary to expectations of foreign party. It does not happen however in Jordanian jurisdiction which offers more space for parties once conflict of laws arises.
The major problem and one that occupies almost all arbitration courts in the world is a problem of enforcement of foreign award. UAE is not an exception of the list. The importance of enforceability has been underlined by Jane L. Volz and Roger S. Haydock in following terms: “without the guarantee of enforceability, the arbitration becomes meaningless, a mere prelude to frustrating litigation”. In UAE, this problem is solved in relatively simple way. The foreign arbitral award can only be enforced in UAE, if it meets the requirements of legislation that stipulates certain conditions to the contents of foreign arbitral award.
Case Of Lebanon
Like majority of European countries, all disputes are arbitrable in Lebanon with exception of some. They mainly include public order offences, personal capacity, bankruptcy, criminal offences and - to some extent - employee compensation and social security issues.
Unlike Saudi Arabia, where government agencies cannot participate in arbitration proceedings, Lebanese law provides freedom for parties to arbitrate against. Thus, parties are free to initiate arbitration proceedings against government bodies and agencies.
In this regard, it is convenient for even foreign parties to initiate arbitration proceedings in the field of IP disputes against government bodies.
In a lot of regards, Lebanese legislation is favourable towards international arbitration and this factor distinguishes it from other Arab countries. It is also evident when it comes to notion of public policy. Public policy in Lebanon is not dominated by religious principles at all, not to mention Islamic ones.
There is also freedom as to arbitration agreement; arbitration agreement can take any forms, clause in contract, addendum or separate agreement. As far as other features of arbitration concerned, they remain all essentially same in par with Western standards.
It also concerns rules of choice of law and enforcement procedure. There is much freedom in choice of law that it is in Saudi and UAE jurisdictions.
Interestingly, when enforcing foreign arbitral awards, Lebanese law enforces only those which are not contrary to international public policy. The distinctive feature of Lebanese law should be emphasised here. It does not oppose foreign arbitral awards to the notion of domestic public policy and this factor make it more favourable among other countries of Arab world and Middle East.
The distinctive interpretation of public policy, as it has been seen above, particularly in countries where Islamic law is predominant makes it considerably difficult for foreign countries with partners from these countries. In this light, Lebanon can become model country where such restrictions have been lifted in favour of international commercial convenience.
What important is implications of Lebanese system of arbitration? Lebanese system of arbitration can serve as a good model for Jordan both in regards of IP disputes and arbitration as whole. However, its importance should not be overestimated; Lebanese arbitration system in the way of development not in the height of its development. Jordan is likely to be associated with Lebanese trend of development than Saudis and UAE because of strong ties and close links between governments
Arbitration system, as we have seen, is largely based on international standards. It does not however mean that it is incompatible with Islamic law. There are some similarities but adequate comparison can be made only when Muslim jurists will produce adequate set of Islamic arbitration rules.
Such work can only be done in collaboration of Muslim jurists in other Arab countries. The experience of other countries such as Lebanon, Saudi Arabia and U.A.E. demonstrated that such set of rules is possible but secular factor should be largely taken into account in order to cope with realities of modern legislation.
The experience of abovementioned countries, as we have shown, is invaluable for Jordan. It is because Jordan has take into account an experience of countries that has same mentality as theirs, Arab and it has undergone same process of economic transformation, even though at the moment the level of their development is bit different.
Compliance Of Intellectual Property Legislation In Jordan With Norms Of Islamic Law
IP legislation in Jordan is vast. It comprises of several acts and encompasses almost all areas of intellectual property. Generally it consists of 15 acts, which are the following: (1) Act of Protecting New Varieties of Plants (2000); (2) Copyright Law , 1992 (1999), No. 22 (No. 29); (3) Geographical Indications Law No. (8) for the year 2000; (4) Industrial Designs and Models Law; (5) Integrated Circuits Law No. (9) for the year 2000; (6) Law Amending the Copyright Protection Law, No. (29) of 1999; (7) Law Amending the Trademarks Law No. (34) of 1999; (8) Models and Industrial Designs Law No. (14) for the year 2000; (9) National Production Protection Law No. (4) for the year 1998; (10) Patent Regulations No. 4522 dated 13.12.2001; (11) Patents Law No. (32) for the year 1999; (12) Plant Variety Protection Law No. (24) for the year 2000; (13) Regulation No. (97) of the Year 2001 Patent Regulation; (14) Trade Marks Rules No. 1 of 1952; (15) Trademarks Law No 34 of 1999.
The major act among these are Copyright Law 1992, which has been amended by Copyright Protection Law 1999, Trademarks Rules No. 1 1952, which has been amended by Trademarks Law No 34 1999 and Patents Law No. 32 1999, which has been supplemented by Patents Regulations No. 4522 2001.
Such variety of legal norms in the field of intellectual property law implies that Jordan pays considerable attention to the question of regulation of these issues on legislative level. It also shows that Jordan attempted its commitment and willingness to international standards of intellectual property law, hence such a bulk of norms extending to all areas of intellectual property law.
Implications Of Islamic Contract Law For Compliance Of Intellectual Property Law With Islamic Law
One of the perplexed issues that occupy lawyers in contemporary Islamic world is whether intellectual property rights are compliant with Islamic law. It has been seen in study of Aryani, that intellectual property rights are in fact protected by Islamic law. Yet, it is not clear to what extent does Islamic law protects intellectual property rights and can such protection be extended to arbitration courts.
In Jordan, the intellectual property legislation is largely based on European models. Why is it so? Why did Jordanian legists fail to incorporate Islamic legal devices into contemporary Jordanian legislation?
It seems that it was much convenient and better to incorporate European models rather than Islamic models, simply because there was no ready Islamic model. But are European models compliant with Islamic principles, which are mainly ethical?
To this question, we may answer, largely looking at Islamic contract law, which distinguishes four major stipulations, one of which is considered to be void and illegal. They are to be tested whether they appear in contemporary intellectual property rights legislation in Jordan.
Muslim jurists, particularly members of Hanafi schools, distinguish the following categories of stipulations to contract: (i) al-shart al-ladhi yaqtadih al-aqd (the stipulation inherent in the nature of the contract); (ii) al-shart al-mula'im li'l-‘aqd (the stipulation appropriate to the contract); (iii) al-shart al-ladhi fih ta'amul (the stipulation that is customary practice); and (iv) al-shart al-fasid.
It is necessary to scrutinise stipulations one by one and test for compliance with modern intellectual property rights in Jordan. For the purposes of present study, it is appropriate to pick Jordanian Trademark Law, provisions of which are usually been invoked by parties who seek resolution of their disputes in arbitration courts in Jordan.
The stipulation inherent in the nature of the contract is such a stipulation where buyer purchases goods on that condition that he or she acquires its ownership or on the condition that he is paid a price, in other words it is ordinary condition, which has to be satisfied, otherwise such transaction is void.
There is nothing that seems to contradict Trademark Law, but one aspect is worth of discussing here. If a company that grants another company a right to use its trademark, it is unlikely that a condition which restricts another party can be considered as a stipulation which is inherent to contract. Yet, the restriction in licence or franchise contract is a condition which is inherent to the contract, where by merits of Islamic law, it is not so.
The stipulation which is appropriate to the contract is a stipulation where a seller sells goods on the condition that “the buyer pledges a security as a countervalue of price, or one the condition that the buyer has a guarantor who stands security for the price”.
Either in license or franchise agreement, there is a condition that one party, especially licensee or franchisee pledges a security or has a guarantor as such, but it is possible that licensor or franchisor inserts such condition in order to assure that licensee or franchisee pays a commission or fee for use of trademark. In this respect, courts ought to consider a possibility that arises when party argues that another party fails to present security or guarantee as a countervalue of price. In this case, licensor or franchisor may assert that it violated al-shart al-mula'im li'l-‘aqd.
Parties should wary however of possibility of this stipulation to be void because some schools of law do not consider this stipulation as legitimate by virtue of consensus (qiyas) but it has been rendered as legal by virtue of juristic preference (istihsan). It implies that some schools of law can still consider this stipulation as invalid.
The stipulation that is customary practice can be interpreted broadly because it can equally include both local and international customary practices. It is however whether Trademark Law can be considered a custom or customary practice but it can be considered as legislation adopted by State in compliance with Islamic law.
The stipulation that is customary practice in the words of Kasani, “a transaction comprising a stipulation which is neither implied in the primary contract nor appropriate to it, but which is common practice…” In this respect, international conventions or treaties, incorporating customs or common practice can also be considered as a part of Islamic law.
The invalid stipulation is “a stipulation which includes uncertainty” or when someone buys an object on a condition that it generates something else in future. It also extends to cases of conventional insurance and contract of futures, where they generate same effect. The invalid stipulation is also a stipulation that involves ritually forbidden behaviour. For instance, Playboy may grant its license or franchise to a company in Jordan, but it would be contrary to Islamic law. Therefore such contract would be void, if arbitration court is to apply principles of Islamic law. It also applies to contracts where sale of pork or wine is intended, contract is equally void.
There are also stipulations which are considered void if they suggest benefit only to on of the parties. The permissibility of such contracts are only considered under Hanbali school of law, whereas Hanafi school of law explicitly prohibits it as well as Malikis and Shafiis. It is particularly this category of contracts that raise issues in licence or franchise agreements because franchise or licence agreements are viewed as onerous contracts. Therefore, arbitration courts, where parties resort their disputes to and which also choose Islamic law as lex arbitri. In this case, arbitration court may refuse adjudication of such disputes because of their incapability with precepts of Islamic law.
Yet, if parties choose Islamic law in Hanbali interpretation, then contract may be legal and court may adjudicate it. Ibn Qudama, Hanbali jurist ruled in the following way: “The contract is valid if the vendor stipulates a definite benefit in the object, such as inhabiting the house for month before its delivery to the buyer. Also the sale is valid if the buyer stipulates an additional condition to his benefit in the object, such as the transport of the firewood or the tailoring of the cloth”.
`In such a case, parties are free to resort their disputes related to arbitration court, provided that parties choose Islamic law in interpretation of Hanbali school of law. It is then a jurisdiction of school of law that becomes an issue in resolution of such disputes. It should also be noted that Hanbali school of law takes more liberal approach in consideration of contracts. But question arises: Will Jordanian courts or companies prefer Hanbali law as a law of dispute? It is because, Jordan has been under influence of Hanafi and Shafii schools for centuries and it is unlikely that they would prefer to shift towards this school. However, on the other hand, in the view of rising importance of international trade and necessity to harmonise with rules of international arbitration and intellectual property law, some Jordanian companies in order not to predate Islamic law, may prefer to apply Hanbali law.
Compliance Of General Intellectual Property Law With Islamic Law
After we have discussed implications of Islamic contract law for intellectual property law, the necessity arises to discuss the compliance of general intellectual property law with Islamic law as it is understood in practice.
One of the benchmark for such understanding is intellectual property law in Jordan. Jordan is a clear example of adequate balance between European and Islamic law, notwithstanding the fact that it has promulgated Islam as the source of legislation, not as a source of legislation.
Case Of Trademark law
The trademark legislation is regulated on the different basis and almost all elements of this legislation are dependent on the fact of registration of the trademark. Yet, it is not that surprising since almost all legislations of the world in the field of trademark operates on that basis.
According to Article 7, the trademark is subject to registration, if it contains distinctive words, letters, numbers, figures, colors, or other signs or any combination thereof and visually perceptible. In this respect, it seems to be in compliance with majority of international standards.
In Islamic law, trademark can be viewed as one of the forms of properties and therefore does not required registration. But problem arises when there are multiple cases of having same trademark, and then there arise necessity to register a person or company who sustains trademark first. It is for the same reasons; registration requirement exists in Jordanian trademark law.
There are however distinctive features of Jordanian trademark legislation. Particularly, it does not recognize as trademarks any elements that resemble any sign of Royal Hashemite Family or anything related to them. It extends to royal crests or the word royal or any other words, characters or insignia or decorations of the government.
Such provision particularly fits within provision of public policy in Islamic law, since it prevents royal family which is mainly associated with Prophet Muhammad's family.
The most interesting feature is prohibition of the use as trademark of elements that are contrary to morality. In this respect, it should be noted that since Islam is the religion of the state, any mark or sign that contradicts with Islamic principles can be deemed as void.
It is however arguable whether trademarks which reflect signs or insignia of alcoholic drinks or pork products, because, for instance, alcohol is not prohibited in Jordan. It is also arguable whether some signs of Christian faith can fall within this prohibition.
The persons with claim of trademark can register it with registrar, yet registrar can refuse on registration. However his actions can be appealed to the High court of justice. It is surprising that person cannot sue to the court of the first instance but high court of justice.
The important disclaimer, which is relevant to the court proceedings as well, is made in Act: “If a trademark incorporates matters in common use in the trade or otherwise is neither in such common use nor has an obvious feature, the registrar or the high court of justice may require, in deciding whether such trademark shall be entered or shall remain entered in the register, as a condition for maintaining it entered in the register, that the proprietor shall disclaim any right to the exclusive use of any part or parts of such trademark…” It is important that the role of the court in such a dispute shall be prevailing otherwise there will be assurance that arbitration court can effectively participate in adjudication of such case.
Such disclaimer is important in the sense that it clearly provides the competence of the court and registrar but in the case of arbitration of the IP, it is really important that such disclaimer is present.
From the point of Islamic law, it is not important whether such disclaimer exists. Important is whether person, whose rights have been violated, can claim for damage or a person, who violated trademark legislation should be persecuted for such breach and court should apply criminal penalty.
Case Of Patent Law
Patent law in Jordan is based on almost similar grounds as trademark law but there are some notable differences between them.
The inventions in order to be patented should not be disclosed before to anyone or displayed in public. Yet, the law makes stipulation that the disclosure would not count if it has been done within twelve months from the date of filling application.
This provision does partially comply with Islamic law of privacy, which does prohibit anyone from interfering into someone's property or house. In this context, property subject to protection irrespective of its being an object of patent law or any other law.
As in the case of copyright and trademark law, the law states that any invention which is contrary to public policy and morality will not be registered. Again, the question of definition of morality arises in connection to Islam; it is not clear whether it is Islam that plays central role in defining the concept of morality. Here the same objections as in trademark case apply in present case as well.
It is important that Patent Law also pays detailed attention to the issue of lawsuits. Particularly, law enables court to take measures in order to prevent further unlawful use of invention. According to Art. 33, these measures include: (i) cessation of the infringement; (ii) placement of a provisional seizure on the product, the subject matter of infringement, wherever found; (iii) preservation of evidence relevant to the infringement.
According to Art. 33 (D), the court also has the right “upon the petition of the counter-party, and provided that the petition is attached with a bank guarantee or a cash deposit accepted by the court, terminate the provisional measure taken to close down the commercial store or the factory or any other place”. It interesting, in this respect, whether such right can be granted to arbitration court in the case when patent dispute is being decided in such court.
There can arise some objections to attaching bank guarantee since majority of schools of Islamic law does object to security as a counter-value of price, as we already have seen above. We also have seen that no objections arise when istihsan or juristic preference is applied in such case. Otherwise such stipulation is invalid.
Case Of Copyright Law
The Copyright Law protects “the innovative products in literature, arts and science, regardless of their kind, importance or purpose of their production”. It does then provide comprehensive list of the products which fall under provisions of this law.
It is generally compliant with Islamic notion of sanctity of property. In this respect, Jamar observed: “the third aspect of property law of direct importance in protection of intellectual property is the divisibility and separability of property rights. For example, one may own the property, but then want to allow another to use it, without transferring complete title”.
Importantly, it provides the court procedures when dispute over trademark arises. In this respect, it should be noted that such procedures are important for intellectual property disputes as well. Particularly, Art. 46 stipulates that court on the request of the owner of the right or his/her successors or heirs take following actions: (i) to order the halting of the violation of the product or any part thereof; (ii) to confiscate the product, its copies and pictures and any materials used in copying, provided that they are not useful for anything else; (iii) to confiscate the exploitation revenues of the published products through public performance.
Such measures comply with general principles of Islamic law but one item still misses here. It is a mode of sanction; logically Islamic law should apply criminal penalty because of the nature of violation. Yet, question arises whether Islamic law should impose same criminal sanctions in respect of violations that arise in the area of intellectual property.
In respect of this provision, it should be noted that such measure as confiscation is unlikely to be taken by arbitration court, yet Art. 8 of Jordanian Arbitration Act may give such option since it allows the intervention of state courts in the cases when it is required by arbitration tribunals. In this fashion, arbitration tribunal may request state court to intervene in order safeguard the product and prevent it from being used further.
The court uses these actions in reserved manner and it can either cancel or amend or confirm such actions. In the same manner, it seems, arbitration courts may hear the cases on IP disputes. IP disputes are among sensitive ones, since violation of trademark, for instance, sometimes leads to decline in profit and image of copyright holder.
It derives from the Act that it pays a lot of attention to reserved action as a safeguarding measure against illegal use of the copyrighted product. Certainly, reserved action occupies central position in the process of lawsuit and in the context of arbitration as well it should occupy such place.
Yet, it also pays attention to the fact of arbitrariness that can take place in the case of claimant requiring undertaking such action against defendant. In such cases, the court orders claimant to compensate such arbitrariness.
According to Art. 47, court in may demand the destruction of the product if the product has been filmed or copied illegitimately, yet in the case, it has been translated into Arabic, the court merely orders to impound the product. Such measure seems to be effective in the case of written publication but not the product which cannot be reproduced by means of written form.
Interestingly, Art. 47b gives the right to the court to confiscate the product and sell it in order to compensate the damage of claimant or person who has suffered loss. In this case, it is not clear why law prescribes such action since sale of the product can lead to further breach of the copyright by another person. It is not the ordinary breach of obligations as in common contract or commercial law but it is infringement of copyright law, the adequate measures for which can be appropriate destruction of the product or the mark that infringes original trademark.
One of the interesting aspects of copyright law is that imposes criminal penalty for the breach of this law. It classifies copyright violation as a crime and any institution which is involved in such crime can be shut down as consequence of deed. It would be contrary to public policy if such action would be taken by arbitration court since arbitration court is established upon the consent of the parties and parties may not be punished by the means of criminal penalty for their breach.
The case of public policy can and will arise in connection to such disputes and it is in the interests of the state courts to restrict the competence of arbitration courts in such disputes.
The important balance is made between international treaties and national legislation on intellectual property protection. The Art. 53 states that in the case that such treaties are not applicable, the principle of equal treatment shall be applied. It also views foreign citizen whose rights have been violated, in the same footing as Jordanian one.
As it has been seen, intellectual property is almost compliant with principles of Islamic law. Yet, such compliance is only possible insofar there is not comprehensive set of rules and provision on intellectual property law.
The same issue as with arbitration also arises in case of intellectual property law in Jordan. Yet, the case of intellectual property law is rather complicated because there might be no need in developing separate rules on intellectual property rights in Islamic law since there is already one on international level.
There is no need to reinvent a bicycle but revival of Islam in Middle East can lead to Islamization of even such area as intellectual property. In this situation, Islamic intellectual property law is inevitable.
Compliance Of Ip Case Adjudication In Arbitration Courts In Jordan With Principles Of Islamic Law
It has already been seen that generally intellectual property law is compliant with Islamic law. It was however because there is no set of established rules on intellectual property in Islamic law. Whereas it has been demonstrated that intellectual property law complies with Islamic law at least in theory, it should also be tested whether such compliance would work in practice.
For practical reason, recent case, decided in Jordanian arbitration court on intellectual property dispute, has been chosen. This case is not related to Islamic law in anyway but the purpose of this test to show whether an ordinary case or dispute be compliant with principles of Islamic law.
Case-Test Of Compliance With Islamic Law
This case has been decided recently at Law and Arbitration Centre in Amman, Jordan. It has been adjudicated between two Jordanian parties, names of which are not disclosed for the reasons of confidentiality. The dispute arose over use of trademark by one company over another.
The company (defendant), which has been involved in food retail in Amman, has opened its branch in Petra town under name similar to food retailer in Amman. The company (plaintiff) which considered its trademark to be violated by actions of defendants, demanded in written way to change or remove the name which has been put in forefront of the food shop. Defendants argued that the use of this mark in no way violated their trademark since the similar pronunciation of their names only caused by the similarity of these names in Arabic. Plaintiffs rejected such arguments, stating that their trademark is known enough in Jordan to be confused with any other name which can be used in the similar way with their name. After short intensive correspondence that took place between them, parties decided to render this dispute to arbitration court, believing that state courts would worsen their dispute to unbelievable level.
It seems that a case does not concern a contract whereby one party would give consent to use its trademark by another party. In the other words, it is not onerous contract. It is therefore excluded that a party which considered its right to be violated, imposed any onerous obligations on another party.
In August 26, 2008 both parties decided to file their case to Law and Arbitration Centre, which is located in Amman. In the beginning the question arose whether this court can adjudicate on the case where trademark has been violated by another party. It has been discussed whether such dispute is not under competence of state court. LAC appointed arbitrator decided on their competence, ruling that since such dispute does not involve state parties or not excluded by public policy exception, it can be decided in private arbitration court.
Another issue arose whether parties should appoint their arbitrators, but parties contended that since they were not familiar with LAC and arbitration agreement did not exist between them, the dispute can be considered by one judge which has been appointed by LAC. In this connection, one interesting characteristic of Arab business dealing should be noted. There is a high level of trust between parties, even though they are in conflict with each other. It is one of the striking features of Arab ethical culture.
Also LAC asked to sign both parties arbitration agreement where they agreed to be bound by the decision of present arbitration tribunal as final and in the case of non-beneficial to one of the parties' decision, to hold fast to it. In this regard, we should consider one question, whether this agreement was compliant with principles of Islamic law or even more: Is it governed by principles of Islamic law?
The arbitration agreement seems to have been concluded by the virtue of mutual consent of both parties and in this respect there is no considerable objection in Islamic law as to its validity. In this connection, Ibn Taymiyya, prominent Hanbali jurist noted: “The principal rule in contracts is the consent of the parties, and the legal effect is what the parties obliged themselves contractually to undertake…” From this point, it appears that arbitration agreement was not invalid and it does not matter whether outcome is beneficial or not, but what is stipulated by mutual consent.
Furthermore, since there were no other issues or questions; arbitration proceedings took place in the office of LAC in Amman. Once it started parties presented their arguments. The major content of plaintiffs was that their trademark is one of the well-known trademarks in Jordan and any use of the name which is similar to it, can put their business profit under jeopardy of decline.
Here one can see a problem of theft to have arise but not ordinary but ‘intellectual property theft' as put by Naser & Muhaisen in their study of an issue. Moreover, they argued that protection of intellectual rights is justified on the basis of the public authorship model, a view which accords with Islamic rules. It seems therefore party can take all measures as to prosecute another party for theft of its rights under Islamic law. However then question arises: Whereas theft is considered to be under jurisdiction of state courts, is it not incorrect to sue party in arbitration court, because it is contrary to public policy? It would have been as such, if it were under jurisdiction of Islamic law, but in present case it is not so.
On the other hand, defendants argued that they did not intend to violate plaintiff's trademark, and the use of similar name was in no way formed the intention to violate their trademark. Their contention was that since the name of the company was associated with famous word in Arabic, in no way any similar name should be regarded as violation of this trademark. They principally agreed with contention of plaintiff's that their trademark is famous but they did not agree that they violated their trademark. They have produced strong evidence that the name used by them to distinguish their company is so common that it could be used in any other sphere. It cannot be, they asserted, that this name should only be associated with plaintiff's company, therefore plaintiff cannot claim for more than what they would claim against any other company, should they be in defendant's place.
In their counter-arguments, plaintiffs referred to the decision of Jordanian High Court, where judge clarified the purpose of registration of trademark, which in his opinion, not only prevent from being abused, but also preventing consumers from being confused by striking similarity of their names. This fact, in their opinion, serves as proof that such similarity in their names may lead consumers to believe that this shop belongs to the same company.
Responding to this counter-argument, defendants claimed that similarity in pronunciation in no way purports to be similarity in the names. They also claimed that there are number of shops in Jordan which has names, pronunciation of which is nearly similar and this fact does not mean that they violated registered trademarks. They also stated that since the brand of plaintiffs is already known in this town and consumers are able to distinguish between two shops, there can be no trademark violation. They also referred to the trademarks of Mercedes Benz and Daimler Benz, arguing that whereas the ending of their names sounds similar, nevertheless customers are able to distinguish them from each other.
In this case, defendants contended, consumers are also capable to distinguish between these two names since it is far from being confused at the first glance. Yet, plaintiffs argued that it is not the case since both companies have similar kinds of products on sale and this factor can summon some doubts since they are reckoned by customers when goods are being purchased.
The arbitrator held that there was no deliberate intention on the part of defendants to violate trademark, yet it should be admitted that both names can be easily confused since they are represent same kind of business. As far as provisions of Trademark Law 1999 concerned, arbitrator asserted that the name of defendant's shop bore distinctive from plaintiff's trademark letters, therefore any similarities should be considered as accidental by the virtue of Art. 18, which stated: “In a case of honest concurrent use of a trademark or under circumstances which in the opinion of the registrar make proper the registration of the same trademark in the name of more than one person, the registrar may permit the registration or such a trademark or any trademarks which closely resemble it, for the same goods or class of goods in the names of more than one person, subject to such conditions and limitations as he may think fit to impose as to the mode or place of use or other respects.”. It was therefore held that plaintiffs cannot claim for breach of trademark and their suit failed.
It seems that court reject claim of party, whose rights were alleged to be violated because they found no intention on the part of the parties to violate. In the terms of Islamic law, it would be the same decision since Islamic jurists also look primarily at intention of parties.
This case largely demonstrated that some aspects of arbitration in matters of intellectual property rights can be a subject to dispute in arbitration court under jurisdiction of Islamic law, whereas some cannot be.
A single case is often not sufficient to demonstrate compatibility of one system with another. It is often obvious in case where secular and religious laws should harmonise. It has been evident however that rules applied in present case can be similarly applied if it were judged according to Islamic law as lex arbitri.
One should not draw far-reaching conclusions from one simple test, but should bear in mind that compliance with Islamic law should be demonstrate also in reference to other kinds of disputes.
Implications Of Islamic Law For Development Of Intellectual Property Law In Jordan
It has already been demonstrated that intellectual property law in Jordan, at least theoretically, is compliant with Islamic law. It has also been seen that such compliance was possible only because there has been no comprehensive set of rules on intellectual property in Islamic law.
Since it has been established that Islamic law does not have specified rules of intellectual property protection, it has, however, specific rules on privacy which can be applied to intellectual property if jurisprudence is operated.
Implications Of Islamic Privacy Law For Intellectual Property Law
In remarkable study devoted to aspects of protection of intellectual property rights in Islamic law, M.A. Naser & W.H. Muhaisen wrote, “significant outcomes were concluded on the basis of the Islamic justification of IPRs, especially in relation to the legislative harmonization and enforcement of IPRs”. It implies that on the level of Islamic legal construction, Islamic jurisprudence of IP can be established and can operate without recourse to further legal sources. Yet, if we take into account that U.A.E. is mainly partnering with countries which are not Islamic, we would realise that Islamic legal principles has to be sacrificed in the sake of commercial and economic convenience.
Further, it should also be noted that Islamic law does not only have civil sanctions for violation of IP rights but criminal as well. It is therefore should be realised that certain cases cannot be resorted to arbitration courts since they fall within public policy exception.
As far as privacy rules in Islamic law, Aryani wrote in her study of privacy in Islam: “Among the basic rights shari`a recognizes is the right to privacy, i.e., the freedom from unauthorized and unannounced intrusions into private spaces. This right has been the subject of countless debates beginning in the early centuries of Islam, and continuing until today. Its relevance has only increased in relevance as technological advances further emasculate the individual from protecting his own private spheres”.
Implications Of Some Arab Countries
Deriving from abovesaid, the question arises: What are the implications of Islamic law for IP disputes in Saudi Arabia, for instance? Such restrictions will further limit the capability of foreign companies which can have their claims over violations of their intellectual property rights in Saudi Arabia. They will not be able to resort to the laws of their country simply because Saudi courts lack of sufficient knowledge and expertise in their respective jurisdiction. In such situation, they will be compelled to prove their point in the court according to Saudi law, of which they do not possess knowledge either. Such dead-end can bring some difficulties in enforcing certain intellectual property rights in Saudi Arabia. Saudi Arabia is well-known for having great number of franchisees of foreign fast-food companies and other companies related to different industries.
On the other hand, since Islamic law is prevalent in Saudi Arabia, there is less danger that companies in Saudi Arabia would violate intellectual property rights. The strictness of Islamic law is burdensome than complicatedness of international regulations on intellectual property rights.
In this connection, it should also be noted that Jordan is in much more favourable position than Saudi Arabia and Jordan is likely to integrate into the world economy than Saudi Arabia.
As far as arbitrator concerned, Saudi law again imposes heavy restrictions in relation to gender and religion of arbitrator. Arbitrator should be male and Sunni Muslim. If these requirements are not met, the appointment is void. Besides, the Saudi Arbitration Regulation, Section 3 provides: “The arbitrator shall be a Saudi national or Muslim expatriate form the free profession section or others”.
In regards to choice of law, rules in Saudi Arabia are similar to UAE and moreover they explicitly prohibit the application of different rules than Islamic.
The problem of enforcement of foreign arbitral award also touches Saudi legislation. Some writers were too much sceptics as to believe in willingness of Saudis in adoption of effective mechanisms of enforcement of foreign arbitral awards. Yet, it is believed that Saudi are likely to honour foreign arbitral award. However, there is a problem of judicial review which scrupulously examines each award for compatibility with Saudi public policy. Or as one of the sceptics ironically noted: “the enforcement of an arbitral award depends upon the belief of the governor of the region in which enforcement is sought as to the fairness of the award”.
Such state of affairs does not speak in favour of Saudi system of arbitration and in comparison with Jordan, Saudi Arabia has to make long away in order to harmonise its rules with international standards of arbitration. Only such way can ensure effective dispute resolution in the area of IP cases.
Moreover, Lebanese system of arbitration can serve as a good model for Jordan both in regards of IP disputes and arbitration as whole. However, its importance should not be overestimated; Lebanese arbitration system in the way of development not in the height of its development. Jordan is likely to be associated with Lebanese trend of development than Saudis and UAE because of strong ties and close links between governments.
IP legislation which is standard as in Western countries does not meet many hindrances in Lebanon as it does in Saudi Arabia and in countries where Islam has strong positions. It does not mean however that these countries should abandon Islamic law as the law of the state, but they have to make significant concessions towards international standards of international arbitration. It is also noteworthy that Lebanon having influential Islamic population does not sacrifice or oppose to international principles of arbitration. Rather, they effectively develop these principles in good direction.
The developments of intellectual property in both Lebanon and Saudi Arabia demonstrate that formulation of Islamic concept of intellectual property in Jordan is only possible where all legislation is based on Islamic legal principles. Otherwise it is worthless to Islamicise intellectual property law, whereas the rest of legislation is secular.
Islamic law of privacy cannot fully serve as a model for Islamic law of intellectual property since they are not parallel in all respects. It can serve only as relative model but prudent model has to be taken from international standards. These standards have to be properly Islamicised, yet there should be guarantee that they still comply with international standards.
Deriving from abovesaid, it should be emphasised that overall adjudication of IP cases in Jordanian arbitration courts are in the way of slow but effective development. It is explained by the fact that Jordan lacks of efficient experts in this field but in order to fill these gaps, Jordanian government has done much with support of legal education of its lawyers abroad.
Jordan can be put between two extremes: countries which stuck with traditionalism, such Saudi Arabia, Oman and Yemen; and countries which advance forward with progress such as Lebanon, UAE, Bahrain, and Qatar.
Jordan has a good potential but lack of human resources. This gap can only be filled with effective legal education in this field. It should be realised that despite Jordanese government has done much in order to keep in pace with development, more things have to be done.
As far as IP arbitration jurisprudence concerned, two cases cited herein demonstrated that arbitrators still does not have full understanding of underlying precepts of IP legislation. It is then fair because IP legislation is in itself, difficult system to grasp. It embraces more than one concepts and its essence can only be understood with reference to various concepts and theories. Often it coincides with various different systems which are not legal at all. In such conditions it is often difficult the concepts which were not know to Jordanese lawyers which has to start from the scratch in order to understand what specific concept implies or means.
Such legal vacuum in IP awareness has created substantive hindrance for majority of lawyers in Jordan, who wish to be engaged with IP disputes. In such situation, it is important that development in IP dispute resolution has to be advanced in order for Jordanians to deal more effectively with them in future.
What are the implications of Islamic legal factor? Is it possible that Jordan will be keen towards adopting Islamic legal principles or adopting more internationalised concepts that comply with Islamic principles? Either way, Jordan has to be in pace with both equally, because it has to take into account several factors which makes Islam non-destroyable factor in this country.
There is also a factor comparative advantages; Jordan has a lot to learn from neighbours, especially from Lebanon and UAE. These countries seem to be at the forefront of legal development among Middle Eastern countries. They offer invaluable experience and skills in the field of IP dispute resolution in arbitration courts. The vast exchange of experience will only foster further development of IP dispute resolution system in arbitration courts of Jordan and will bring only prosperity in these matters.
Also, we have seen that there is a necessity of scrutinising rules of intellectual property rights for compliance with principles of Islamic law, particularly Islamic contract law. The outcome of testing compliance can be various, as our hypothesis demonstrated. It is therefore crucial to establish critical approach because of difference that exists between Islamic schools of law.
It is important that in such cases Jordanian companies should be careful when choosing lex arbitri; they have to stipulate carefully what they choose as a law that governs dispute. If it is Islamic law, then parties should choose Hanbali school of law, if they do not want their agreement to be void when they have additional stipulations which are onerous.
Paradoxically, all contracts that involve either trademarks, or patents or other elements of intellectual property, are onerous in their nature. Be it so, they are all void under three schools of law, but permissible under one school of law.
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