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Two Sides of the Saudi Public Policy Coin: Reconciling Domestic and Transnational Values in Recognition and Enforcement of International

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Two Sides of the Saudi Public Policy Coin: Reconciling Domestic and Transnational Values in Recognition and Enforcement of International Two sides of the Saudi public policy coin: reconciling domestic and transnational values in recognition and enforcement of international commercial arbitration awards Bander Alsaif A thesis submitted in accordance with the requirements for the award of the Degree of Doctor of Juridical Science, Faculty of Law, University of New South Wales 2018 Surname/Family Name : ALSAIF Given Name/s : BANDER Abbreviation for degree as give in the : SJD University calendar Faculty : Faculty of Law School : School of Law Two sides of the Saudi public policy coin: Reconciling Thesis Title : domestic and transnational values in recognition and enforcement of international commercial arbitration awards Abstract 350 words maximum: (PLEASE TYPE) This thesis investigates how the legal system of Saudi Arabia responds to the application of the concept of public policy in the judicial review of international commercial arbitration awards. This thesis demonstrates the reasons why Saudi courts have refused to recognise and implement foreign awards using the public policy defence. The thesis makes an original contribution to knowledge by precisely addressing the fundamental legal issues of the Saudi concept of public policy. The thesis offers a theoretical and practical understanding of the concept of public policy from the international and Saudi perspective, which enables this research to provide legal recommendations to reconcile domestic and transnational values. By extrapolating the available provisions of the Saudi Board of Grievances, executive courts and legislatures, and comparing them with equivalent provisions in other leading jurisdictions in the development of arbitration law, this thesis concludes that the judicial application of the Saudi concept of public policy to the international commercial arbitration awards is unsatisfactory. This thesis shows that Saudi courts have refused to recognise and implement arbitration awards on the grounds of public policy when awards contravene the fundamental principles of national law (i.e., General Jurisprudential Principles) or Islamic law (i.e., Sharia). Metaphorically, the Saudi concept of public policy is a coin with two sides, and each side is imbued with many significant legal issues. However, the main argument to tame the unruly horse of Saudi public policy and bring it into line with the leading jurisdictions in the development of arbitration law is that lawmakers, the judiciary and the Saudi legal community must take steps to reformulate the scope of Saudi public policy. This thesis proposes and recommends such steps. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). ……………………………………..……… ……….……………………...… ……… ….… Witness Signature Date ………………………………………………… ………… Signature The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE Date of completion of requirements ONLY for Award: Originality Statement I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged. Signed: Date: March 29, 2018 ii COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……………………………………………........................... Abstract This thesis investigates how the legal system of the Kingdom of Saudi Arabia responds to the application of the concept of public policy in the judicial review of international commercial arbitration awards. This thesis demonstrates the reasons why Saudi courts have refused to recognise and implement foreign awards using the public policy defence. The thesis makes an original contribution to knowledge by precisely addressing the fundamental legal issues of the Saudi concept of public policy. The thesis offers a theoretical and practical understanding of the concept of public policy from the international and Saudi perspective, which enables this research to provide legal recommendations to reconcile domestic and transnational values. By extrapolating the available provisions of the Saudi Board of Grievances, executive courts and legislatures and comparing them with equivalent provisions in other leading jurisdictions in the development of arbitration law, this thesis concludes that the judicial application of the Saudi concept of public policy to international commercial arbitration awards is unsatisfactory. This thesis shows that Saudi courts have refused to recognise and implement arbitration awards on the grounds of public policy when awards contravene the fundamental principles of national law (i.e., General Jurisprudential Principles) or Islamic law (i.e., Sharia). Metaphorically, the Saudi concept of public policy is a coin with two sides, and each is imbued with many significant legal issues. However, the main argument to tame the unruly horse of Saudi public policy and bring it into line with the leading jurisdictions in the development of arbitration law is that lawmakers, the judiciary and the Saudi legal community must take many steps to reformulate the scope of Saudi public policy. This thesis proposes and recommends such steps. iii Acknowledgements This SJD thesis at University of New South Wales (UNSW) is the most significant project I have completed. I lived with this project for many years, and without the unlimited support of many people and institutions, this project would not be accomplished. First, I would like to thank Allah almighty for his support during this project. I also would like to thank King Abdullah bin Abdulaziz Al Saud—may Allah have mercy on him and accept him into paradise—and His successor King Salman bin Abdulaziz Al Saud for their recommendations and unlimited support during this project. They were my inspiration and the engine that drove me to complete this fundamental project for our nation, the Kingdom of Saudi Arabia. I am eternally obligated to my supervisor, the most prominent scholar I have ever worked with, Professor Leon E. Trakman, who continuously encouraged me and made suggestions based on his great experience as an international arbitrator during the SJD programme. I am also indebted to my second supervisor, Dr Alexandra George, for her enthusiasm, personality, charisma, critical suggestions and questions, which enabled my project to reach this level. I thank the many UNSW staff members who assisted me during the programme; in particular, Dr Jenny Jarrett, Higher Degree Research Officer, deserves special thanks for her unforgettable kindness and support. Jenny was a safe haven during difficulties, a second mother and a great teacher during my expatriation period. I am eternally obligated to my family: my father, Dr Saleh, and my mother Maha, my brother, my sisters and my daughter. Especial thanks to my lovely wife for the great iv sacrifices
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