Macquarie University
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A proposal to guide future draft article provisions for a model harmonised international commercial arbitration law code (HICALC) in the Middle East and North Africa or a uniform Arab arbitration law

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posted on 2022-03-28, 13:44 authored by Mary Boulos Ayad
MENA law codes are a well-crafted blend of civil and Islamic law in which civil law principles do not contravene with Islamic provisions. They were originally based on Sanhuri’s codes to varying degrees. Yet, common law principles derived either from English common law or Islamic customary usages are unidentified and thus ignored. Here, this lacuna is rectified through a comparative analysis of the primary data (eg, cases, statutes and arbitral award decisions), adding common law and uncodified Islamic custom to MENA law codes. The purpose of this comparative analysis is to allow common legal principles found at civil, common and Islamic law to be distilled in the service of creating a new harmonised international commercial arbitration law code (HICALC) or uniform Arab arbitration law (UAAL) for adoption in the MENA.1 These principles already form part or all of the legal systems in the MENA. They can be readily assimilated into a harmonised or uniform code. Would this new harmonised code lead to higher arbitral award enforcement in the MENA? According to the evidence the answer is yes. The author understands that at the present time the HICALC articles are ambitious and as such they are a beginning point and can initially be taken as a harmonised international commercial arbitration common rule (HICACR). A brief overview of the history of harmonisation is given. An assessment of the status of the laws and traditions of the MENA was carried out. A comparative analysis of the relevant differences and similarities of the case study countries (Egypt and the United Arab Emirates) was carried out to show the gaps in the laws and areas requiring reform. An analysis of enforcement of arbitral awards was carried out. The unique problems that ICA and IIA encounter in the MENA as derived from an analysis of cases and the laws therein are expounded in consideration of matters pertaining to enforcement. A comparative analysis of universal principles which must be included in a new code, including custom, was carried out. An analysis of the unique features and unique needs of the MENA was carried out in order to inform the Draft Article Provisions. An analysis of important international legal instruments dealing specifically with international arbitration and the gaps therein is given. The draft articles for a HICALC or uniform Arab arbitration law were derived as a result of these multiple layers of analysis. The matters of compétence de la compétence, expropriation, interest, public policy and sovereign immunity are highlighted as the most important areas requiring urgent reform. The results of this research are suggested Draft Article Provisions for a model Harmonised International Commercial Arbitration Law Code (HICALC) or a uniform Arab arbitration law. Future drafters may refer to and revise these articles for implementation. The synthesis of theory and practice addresses doctrinal matters that arise in international investment arbitrations and international commercial arbitration, with a focus on investor–State arbitrations. This synthesis provides a new theoretical conception of the jurisprudence of international arbitration, particularly in regard to the matters of res iudicata, precedent and expansion of arbitral tribunal powers and jurisdiction.


Table of Contents

Dedication -- Declaration -- Acknowledgement -- List of publications and presentations relevant to this research -- Table of abbreviations -- Table of authorities -- Table of contents -- Abstract -- Section I: Introduction of investor-state disputes -- Section II: Literature review and methodology -- Section III: Distinctive legal features and legal traditions of the MENA that an Arab uniform (HICALC) arbitration law must address -- Section IV: Results and discussion of substantive and procedural matters requiring reform -- Conclusion -- Bibliography -- Section IX: Suggested draft article provisions for a uniform Arab arbitration law or model harmonised international commercial arbitration law code (HICALC)


"Presented for the Degree of Doctor of Philosophy in Law at Macquarie University, 8 October, 2012" Bibliography: pages 483-496 Thesis by publication.

Awarding Institution

Macquarie University

Degree Type

Thesis PhD


PhD, Macquarie University, Faculty of Business and Economics

Department, Centre or School

Faculty of Business and Economics

Year of Award


Principal Supervisor

Peter Gillies

Additional Supervisor 1

Niloufer Selvadurai


Copyright disclaimer: Copyright Mary Boulos Ayad 2013.




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