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Shari’a Law And Dispute Resolution In The Post-COVID-19 Legal Order

Shari’a Law And Dispute Resolution In The Post-COVID-19 Legal Order

MODERN societies have for many years evolved efficient methods for resolving legal disputes in a peaceful manner. Litigation in courts, as well as out-of-court alternative dispute resolution (ADR) methods - such as negotiation, mediation, conciliation and arbitration - are popular avenues through which a wide range of commercial and non-commercial disputes are resolved in Qatar and beyond.
However, the ongoing COVID-19 pandemic poses complex and multifaceted challenges to justice delivery systems across the world. History teaches us that in times of global disasters and economic disruptions, such as those triggered by COVID-19, legal disputes significantly increase. These include employment disputes, breach of contract, bankruptcy, insurance claims, family disputes, supply chain disruptions, and more. In light of the impending tsunami of complex legal disputes that could arise post-COVID-19, lawyers and judicial institutions will require support so that they can effectively handle such disputes and not be overwhelmed. In addition to technological, digitalisation, financial and infrastructure needs, innovative dispute management mechanisms will be required to avoid institutional gridlock.
The COVID-19 pandemic provides an opportunity to explore how Shari’a law – the principal source of law in Muslim countries – can provide additional and innovative avenues for dispute resolution. For many years, the value of Islamic ADR has been explored in the literature but has not been exhaustively tested. Islamic ADR promotes the resolution of disputes outside of courts, in accordance with the tenets and procedures of Shari’a law. Shari’a-compliant modes of resolving disputes include Muhtasib (use of an ombudsman); Sulh (negotiation, mediation/conciliation); and Tahkim (arbitration). One distinguishing feature of Islamic ADR, as compared to traditional ADR methods, is that parties agree to abide by Qur’anic injunctions and prophetic practice in determining their claims. For example, the Qur’an and Hadith prohibit the levying of interest (riba). In selecting Islamic ADR, parties therefore choose to exclude riba.
In addition to its inestimable moral, cultural and spiritual value, Islamic ADR can provide an alternative legal framework for resolving non-commercial disputes such as family disputes, property and inheritance. The same is also true of small and medium scale entrepreneurial disputes where religious tenets and principles can play a key role in timely, less acrimonious, and cost-effective resolution. In a post-COVID-19 world, Islamic ADR Tribunals can reduce the impending pressure and demand on courts and ADR institutions and allow parties to achieve final and binding resolution in a timely, accessible and cost-efficient manner.
Islamic ADR can be implemented within the framework of existing judicial institutions across the Islamic world. Among the lessons that can be gleaned from countries such as the United Kingdom, Malaysia and Indonesia, where Islamic ADR is already being implemented with varying levels of success, is that the most important first step is to develop clear and comprehensive rules and procedures that provide legal backing and support for Islamic ADR.
For example, the Asian International Arbitration Centre in Malaysia has developed Islamic Arbitration Rules (i-Arbitration Rules), which provide a comprehensive framework of Shari’a-compliant rules and procedures for resolving disputes. An equally important step for fast-tracking the adoption of Islamic ADR is to leverage the existing expertise of arbitrators, practitioners and scholars who are already well versed in the intricacies of ADR, as well as the fundamental principles of law. Such experts can guide the speedy development of tailored Islamic ADR principles and procedures that reflect the rich and diverse legal cultures and traditions across and within Muslim countries.
Higher education institutions also have crucial roles to play in developing innovative programs to train and prepare societies for the emerging legal order post-COVID 19. The College of Law at Hamad Bin Khalifa University (HBKU) is already spearheading innovation in this area. Through its Juris Doctor (JD) programme, LLM in International Economic and Business Law, LLM in International Law and Foreign Affairs, as well as the Certificate Program “Law in Practice in Qatar”, students have exceptional opportunities to acquire comparative legal skills and knowledge on the rudiments of ADR and its practical application in their home countries.
Damilola S Olawuyi is an
associate professor at the
College of Law (CL) at Hamad
Bin Khalifa University (HBKU)

(This article is submitted on behalf of the author by the HBKU Communications Directorate. The views expressed are the author’s own and do not necessarily reflect the University’s official stance)