Gender, Nationality and Religion of the Arbitrator - A Saudi Perspective

Abstract

Background: The lack of diversity of arbitrators is a global phenomenon equally concerning arbitration institutions in Europe, U.S. and elsewhere. In most parts of the world, there were no legislative restrictions to the choice of arbitrators, yet predominantly white and male arbitrators have been appointed thus far. In Saudi Arabia for a long time, there was no clear legislative provision if it is permitted to appoint women, foreigners or non-Muslims as arbitrators. Jurisprudence and doctrine had diverging opinions on the matter based on the subject matter of the dispute and the interpretation of Sharia that gives no explicit answers to this question. Commercial Arbitration in Saudi Arabia is on constant rise since the adoption of the new Arbitration law in 2012 and the reform of the judiciary and the enforcement laws. The new arbitration legislation removed the barriers based on nationality or religion but did not resolve the question of women being appointed as arbitrators. The jurisprudence finally resolved the matter by allowing the first female appointment of an arbitrator in 2016. While women in 2018 also took over mandates in public prosecutions, they are yet to be admitted becoming judges in Saudi Arabia. The Saudi Vision 2030 seeks to empower women to gain full access to the legal profession in Saudi Arabia.

The paper in particular focuses on the arguments in favor or against diversity of arbitrators under Sharia law to the extent that it may influence the diversity of arbitrators in the future development of arbitration under Saudi Vision 2030.

Methods: The normative method was used to identify legislation in Europe, U.S. and Saudi Arabia on the choice of arbitrators. This method also included a comparative analysis of EU, U.S. and Saudi legislation and case-law to draw conclusions and recommendations for further development. Statistics were used to confirm how the legislation has impacted the actual appointment of arbitrators based on their gender, religion and nationality in different European states, the U.S. and Saudi Arabia. The dogmatic method was used to understand the reasons behind the current statistics and legislation on the gender, nationality and religion requirements for arbitrators in different states. The analytical method is used to draw conclusions on the quality and transferability of the practices and legislative measures in European states and the U.S. to the current developments in Saudi Arabia.

Results and conclusions: While the need for diversity of arbitrators is undisputed, the statistics before the leading arbitration institutions in Europe, U.S. and Asia are far from satisfying. In Saudi Arabia there was a legislative restriction to nominate diverse arbitrators until 2012, while in other examined states the diversity was not accomplished despite the modern arbitration legislation. The results reveal the current stage of discussion and development in Europe, Saudi Arabia and other states when it comes to gender, nationality and religion of the arbitrators and expose the need for further measures to achieve the desired diversity.