THE SAUDI LEGISLATIVE APPROACH AND JUDICIAL ATTITUDE TOWARDS THE ENFORCEMENT OF FOREIGN ARBITRAL AGREEMENTS AND AWARDS

Abstract

The purpose of this thesis is to establish the Saudi legislative approach and judicial attitude towards I) the enforcement of agreements providing for arbitration in a foreign jurisdiction which is implemented by Saudi Arbitration Law of 2012 (SAL 2012), and II) the enforcement of foreign arbitral awards (FAAs) which is implemented by the Enforcement Law of 2012 (EL). Since the promulgation of SAL 2012 and the EL, there has been no extensive research with a particular focus on the compatibility of these two national legislations with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1985 (NYC). Moreover, there has been limited analysis of the extent to which these two different national legislations impact the Saudi judicial attitude towards the enforcement of such agreements and awards. With the use of the doctrinal and comparative methods, this thesis seeks to convince the reader that: I) the Saudi legislative approach and judicial attitude towards the enforcement of such agreements are largely positive owing to SAL 2012 and its arbitration-friendly provisions. As a result, Saudi courts have ended the scholarly assimilation of foreign arbitration and foreign litigation. And II) the Saudi legislative approach and judicial attitude towards the enforcement of FAAs are ambivalent, reflecting both a positive and negative stance. Accordingly, FAAs are highly likely to be enforced in Saudi Arabia. Nevertheless, they will be enforced under conditions of the EL that are more demanding than those prescribed under the NYC. The negative stance may stem from 1) that the question of how different sources of the Saudi legal system, namely Shari’ah, international treaties, and domestic laws, interact in the case of conflict has not been sufficiently answered in either theory or practice; and/or 2) the EL reinforces the analogy between the enforcement of FAAs and the enforcement of foreign judgments to the extent that defining characteristic of international commercial arbitration (ICA) (i.e., sui generis) is discounted at the enforcement stage.