Philosophical basis of the legal theory underlying international commercial arbitration in the Middle East region

Abstract

Purpose

The purpose of this paper is to focus on the regional perceptions of the Middle East region in relation to international commercial arbitration and show how these perceptions influence the attempts to harmonise the modern international law in the Middle East region.

Design/methodology/approach

Legal positivism as a general philosophy, mainly influenced by John Austin, is used as an analytical tool in order to identify the general trends from Western and Middle East cultural perspectives that relate to international commercial arbitration.

Findings

The paper shows how the Middle East region has different social and legal values between the West and the Middle East region in respect to the primarily three general and important features of the law – namely, normative, institutionalised, and coercive. Positivism legal theory shows that such success in the context of western European commercial law is inappropriate in the Middle East where different cultural norms make its wholesale and unqualified transferability problematic, notwithstanding its acceptance in highly generalised terms.

Practical implications

The paper generates a proposition that reforms are more likely to succeed if adjustments to the cultural environment are made. Thus, it supports the argument that regional values can add to the global activities of the harmonisation process of international commercial arbitration law.

Originality/value

The paper provides a clear understanding of the guidelines for the reform and development of Middle East international commercial arbitration. Legal culture should be taken into consideration if a successful reform is to be achieved.

Citation

Abu Sadah, M. (2009), "Philosophical basis of the legal theory underlying international commercial arbitration in the Middle East region", Journal of International Trade Law and Policy, Vol. 8 No. 2, pp. 137-158. https://doi.org/10.1108/14770020910981470